FEDERAL COURT OF AUSTRALIA
Ewin v Vergara (No 3) [2013] FCA 1311
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. On or before 4 pm on 12 December 2013, the applicant file and serve on the respondent:
(a) an affidavit detailing and enclosing the terms of any settlement reached between the applicant and Living and Leisure Australia Limited, Robert Walters Pty Ltd or any other person by which satisfaction (in whole or in part) has been provided to the applicant of any loss or damage suffered by the applicant arising from or consequential upon the conduct of the respondent which is the subject of this proceeding. If necessary, such affidavit shall set out and verify the amount the applicant claims to be entitled to deduct from any lump sum settlement by way of costs; and
(b) minutes of proposed orders that reflect the reasons for judgment published this day, including a proposed order as to interest with particulars detailing the amount proposed.
2. The proceeding be listed for further hearing at 9.30 am on 16 December 2013, for submissions as to the appropriate orders to be made in the proceeding.
3. Until further order, the respondent not disclose to anyone other than any legal practitioner engaged by him to represent him in this proceeding, the terms of any settlement disclosed to him by reason of the applicant’s compliance with paragraph (a) of order 1.
4. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 494 of 2011 |
BETWEEN: | JEMMA EWIN Applicant
|
AND: | CLAUDIO VERGARA Respondent
|
JUDGE: | BROMBERG J |
DATE: | 5 December 2013 |
PLACE: | MELBOURNE |
[1] | |
[9] | |
[44] | |
[53] | |
[59] | |
[69] | |
[81] | |
[81] | |
[89] | |
[90] | |
[97] | |
[114] | |
[148] | |
[171] | |
[235] | |
[235] | |
[255] | |
[273] | |
[277] | |
[286] | |
[346] | |
[348] | |
[370] | |
[381] | |
[392] | |
[426] | |
[466] | |
[472] | |
[496] | |
[520] | |
Impact of the subsequent events on the assessment of the evidence | [565] |
[592] | |
[596] | |
[608] | |
[618] | |
[652] | |
[663] | |
[670] | |
[675] | |
[685] | |
[692] |
REASONS FOR JUDGMENT
1 It is unlawful for a person to sexually harass another person in the circumstances described by s 28B of the Sex Discrimination Act 1984 (Cth) (“the SD Act”). The applicant (“Ms Ewin”) claims that on a number of occasions in May of 2009, she was sexually harassed by the respondent (“Mr Vergara”). At that time, Ms Ewin and Mr Vergara were both accountants working in the business of Living and Leisure Australia Limited (“LLA”).
2 Ms Ewin’s pleaded case alleging sexual harassment relates to two consecutive but distinct periods. The first covers conduct in the period 12 May 2009 until the afternoon of 15 May 2009. The unlawful conduct relied upon in that period is largely verbal conduct of a sexual nature and it is convenient that I refer to it as the “verbal sexual harassment claims”. The second period in which sexual harassment is alleged relates to conduct in the evening of 15 May 2009. The unlawful conduct relied upon in that period is confined by Ms Ewin’s pleaded case to sexual intercourse and assault. It is convenient that I refer to that claim as the “physical sexual harassment claim”.
3 Broadly stated, the verbal sexual harassment claims are based upon the following incidents:
On 12 May 2009, Mr Vergara suggested to Ms Ewin at a bar near Southern Cross train station that they should go out dancing and let their hair down.
On 13 May 2009, Mr Vergara engaged in sexually suggestive conduct towards Ms Ewin at work, touched her inappropriately while she was at her desk and pressured her to attend a pub with him for a drink. At the pub, Mr Vergara proposed that Ms Ewin have an affair with him and sexually propositioned Ms Ewin in explicit terms. After Ms Ewin declined his advances, Mr Vergara tried to kiss her.
On 14 May 2009, during the course of the working day, Mr Vergara continued to proposition Ms Ewin for sex in explicit terms and during work on 15 May 2009, made further sexual comments directed at her.
4 The physical sexual harassment claim is based upon events during the evening of 15 May 2009. That evening Ms Ewin and Mr Vergara attended a work function at the Melbourne Aquarium before heading to a bar across the road with work colleagues. Both later returned to the LLA office. Ms Ewin alleged that while at the LLA office, Mr Vergara subjected her to sexual intercourse and assault.
5 Ms Ewin claims that as a result of Mr Vergara’s sexual harassment she suffers from post-traumatic stress disorder (“PTSD”) and other psychiatric illness. By reason of Ms Ewin’s inability to work and other disadvantage, she claims that she suffered and will continue to suffer loss and damage. By this proceeding, Ms Ewin seeks to recover that loss.
6 Ms Ewin’s claims also include claims of sex discrimination, although for reasons I will later explain, in large part those claims need not be determined.
7 A large body of evidence was received by the Court over a 12 day trial in which Ms Ewin was legally represented and Mr Vergara was not. Almost the entirety of the evidence was contested, with different accounts of the same events given by Ms Ewin and Mr Vergara. A careful and comprehensive consideration of the evidence was required and a number of legal issues were raised which needed to be determined.
8 These reasons commence with my consideration of the main legal issues which arose as to the proper construction of s 28B of the SD Act. I then make some observations which identify the general approach I have taken to the assessment of the evidence. Thereafter, these reasons summarise the evidence, record the findings I have made and identify the relief that the Court proposes to grant.
sexual HARASSMENT claim – the main legal issues
9 In relation to the sexual harassment claims, Ms Ewin alleged that Mr Vergara contravened s 28B(6) or alternatively s 28B(2) of the SD Act. Each of those provisions identifies a particular setting in which it is unlawful for one person to sexually harass another. Those provisions sit amongst a number of others in s 28B dealing with employment or employment-like settings.
10 In order to help explain some of the issues that arise concerning the scope of the conduct which is proscribed by the SD Act, it is necessary that I set out the terms of s 28B as at May of 2009, as well as s 28A which defined “sexual harassment”.
11 Section 28A of the SD Act provided:
28A Meaning of sexual harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
12 Section 28B of the SD Act provided:
28B Employment, partnerships etc.
(1) It is unlawful for a person to sexually harass:
(a) an employee of the person; or
(b) a person who is seeking to become an employee of the
person.
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
(3) It is unlawful for a person to sexually harass:
(a) a commission agent or contract worker of the person; or
(b) a person who is seeking to become a commission agent or contract worker of the person.
(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.
(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.
(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.
(7) In this section:
place includes a ship, aircraft or vehicle.
workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
workplace participant means any of the following:
(a) an employer or employee;
(b) a commission agent or contract worker;
(c) a partner in a partnership.
13 As issues of statutory construction arise as to the intended scope of the conduct proscribed by s 28B, regard will need to be given to the objects of the SD Act which were set out in s 3 in the following terms:
The objects of this Act are:
(a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and
(b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and
(ba) to eliminate, so far as possible, discrimination involving dismissal of employees on the ground of family responsibilities; and
(c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and
(d) to promote recognition and acceptance within the community of the principle of the equality of men and women.
14 Ms Ewin primarily relied upon s 28B(6). She contended that both she and Mr Vergara were “workplace participants” and that it was a contravention of s 28B(6) for Mr Vergara to have sexually harassed her. There was no real contest, and I am satisfied that, at the relevant time Ms Ewin was an “employee” and that Mr Vergara was a “contract worker” within the meaning of “workplace participant” found in s 28B(7). A “contract worker” was defined in s 4 to mean “a person who does work for another person pursuant to a contract between the employer of the first-mentioned person and that other person”. Mr Vergara was an employee of a recruitment and labour hire firm named Robert Walters Pty Ltd (“Robert Walters”). Mr Vergara was made available to perform work for LLA pursuant to a contract between Robert Walters and LLA.
15 There was however some contest as to whether, if Mr Vergara did sexually harass Ms Ewin, he did so whilst working as a “workplace participant” and “at a place that is a workplace of both” Ms Ewin and Mr Vergara, within the meaning of those words in s 28B(6). The definition of “workplace” found in s 28B(7) is relevant to the determination of that contest.
16 Ms Ewin disputed that any difficulties arose for her case by reason of the place at which any of the alleged sexual harassment occurred. However to fortify her claims, Ms Ewin also contended that Mr Vergara was an “employee” and that she was “a fellow employee” protected from sexual harassment by the terms of s 28B(2). There is no place based requirement to establish a contravention of s 28B(2). However, whilst there was no issue that each of Ms Ewin and Mr Vergara were “employees”, Mr Vergara contended that as they each had different employers, Ms Ewin was not “a fellow employee” within the meaning of s 28B(2) and therefore that provision was inapplicable.
17 I accept the construction of s 28B(2) for which Mr Vergara contends.
18 The ordinary meaning of the phrase “a fellow employee” does not necessarily connote two employees employed by the same employer. Each of Mr Vergara and Ms Ewin had different employers but were both employees working in the same business and vis-a-vis each other capable of being regarded as fellow employees within the ordinary meaning of that phrase. Their situation was by no means uncommon. Corporate structures used to run and organise contemporary businesses often result in employees of multiple employers working as a single workforce in the one workplace.
19 However, the terms of s 28B(2) and the context provided by s 28B more broadly, suggest that a narrower use of the phrase was intended. Whilst the words “with the same employer” in s 28B(2) are principally directed to protecting against harassment between an existing employee and a prospective employee of the same employer, the use of that reference suggests that the need for a common employer was also contemplated as between existing fellow employees.
20 Ms Ewin’s contention may have been stronger if s 28B failed to provide any protection for employees of different employers working in the same workplace. It would have been odd if harassment between co-workers of that kind had been excluded from protection. However co-workers employed by different employers working in the same workplace are covered by s 28B(6) and, in my view, it is only s 28B(6) that was intended to provide relief in those circumstances.
21 I should add for completeness that Ms Ewin’s case floated but did not develop a contention that Mr Vergara and Ms Ewin had a common employer because Mr Vergara could be regarded as an employee of LLA. That contention, as I perceive it, was founded on the notion that in the tripartite arrangement which existed between Mr Vergara, Robert Walters and LLA, Mr Vergara could be regarded as an employee of both Robert Walters and LLA. A number of Australian decisions have acknowledged the possibility of joint employment in tripartite arrangements such as that in which Mr Vergara was involved. Those decisions are discussed by Collier J in Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263 at [72]-[78], where her Honour concluded at [78] that there is in her view, “scope in Australian law for a claim that multiple entities can jointly employ a person”.
22 In the absence of the contention having been properly developed and any evidence in support of it properly identified, I have regarded the contention as not having been pressed.
23 For those reasons I have rejected that any contravention of s 28B(2) occurred and confined my further consideration of Ms Ewin’s claims to the question of whether s 28B(6) was contravened. The starting point in that exercise is the meaning of “sexual harassment” provided by s 28A. For conduct to meet the s 28A definition of “sexual harassment”, the conduct must be a “sexual advance”, a “request for a sexual favour” or “conduct of a sexual nature”.
24 In relation to the verbal sexual harassment claim, each of those three categories of conduct were relied upon. No issue was raised by Mr Vergara that any of the conduct relied upon by Ms Ewin was not capable of being characterised as involving a sexual advance, a request for a sexual favour or conduct of a sexual nature. There is however one incident on 12 May which I consider falls outside of the statutory definition. I will address that issue when I later deal with the particular incident.
25 The alleged acts of sexual intercourse and assault, which constitute the physical sexual harassment claim, are pleaded as “conduct of a sexual nature”. There was no issue that those acts are capable of meeting the statutory definition and I accept that they do.
26 The two other respects in which the statutory definition of “sexual harassment” must be satisfied if an applicant is to succeed, is that the conduct must be:
(i) “unwelcome”; and
(ii) made “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated”.
27 In the context of conduct which is directed (intentionally or not) by one person to another or others, “unwelcome” simply means conduct that is disagreeable to the person to whom it was directed. In Aldridge v Booth (1988) 80 ALR 1 at 5, Spender J described unwelcome conduct as conduct that was not solicited or invited and was regarded as undesirable or offensive by the person to whom it was directed. That understanding was adopted by Wilcox J in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 247 and by Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 at [289]. The requirement that the impugned conduct be unwelcome raises a subjective test (Kraus v Menzie [2012] FCA 3 at [22] (Mansfield J)) and looks to the reaction (whether articulated or not) of the person who has been subjected to the conduct.
28 The other element listed above looks to whether a reasonable person would have anticipated a reaction to the conduct involving offence, humiliation or intimidation. That element raises an objective consideration (Kraus at [22] and Poniatowska at [289]) which is to be answered by reference to what a reasonable person would have anticipated in all of the circumstances. What the person who perpetrated the conduct anticipated or otherwise perceived would be the reaction of the person harassed, is not relevant.
29 There are no issues of interpretation raised as to whether the conduct relied upon by Ms Ewin was capable of meeting the statutory definition in this respect. However, as a factual matter, Mr Vergara disputed that the conduct alleged was unwelcome and that a reasonable person would have anticipated that Ms Ewin would be offended, humiliated or intimidated.
30 It is apparent then that s 28A only raised one issue of construction which I will later address but that more substantial construction issues were raised in relation to s 28B(6). I turn then to consider those issues in more detail.
31 Taking a broad view of what I understand Mr Vergara sought to put in issue, Mr Vergara contended that the scope of the conduct proscribed by s 28B(6) does not extend to conduct which has not occurred during working hours whilst the “workplace participants” are gathered at the workplace for the purpose of undertaking work. Additionally, Mr Vergara contended that the term “workplace” extends only to the premises exclusively occupied and utilised by the workplace participants of that workplace and not to common areas shared by workplace participants with others such as employees of other workplaces or the public generally. Relevantly to the facts raised by this case, Mr Vergara in this respect contended that the “workplace” of Ms Ewin and himself was confined to the area exclusively occupied by LLA as its office and not to any common areas on the floor of the office building on which the office was located.
32 There is no warrant for narrowly construing provisions such as s 28B: South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402 at [70] (Kiefel J). Section 28B is a remedial provision found in legislation which protects human rights and ought to be broadly construed: AB v Western Australia (2011) 244 CLR 390 at [24] (the Court); IW v City of Perth (1997) 191 CLR 1 at 12 (Brennan CJ and McHugh J) and 39 (Gummow J); Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 (Brennan J) and 394 (Dawson and Toohey JJ).
33 As McHugh, Gummow, Kirby and Hayne JJ observed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], the context, the general purpose and the policy of a statutory provision are amongst the best guides to its meaning. Reading legislation in light of its objects has been said to be of particular significance in the case of legislation which protects or enforces human rights: AB v Western Australia at [24] (the Court); Waters at 359 (Mason CJ and Gaudron J); X v McHugh (Auditor-General for the State of Tasmania) (1994) 56 IR 248 at 256 (Wilson P). Section 28B was enacted in furtherance of the object expressed in s 3(c) of the SD Act and as such, ought to be construed by reference to Parliament’s stated objective of eliminating, so far as is possible, discrimination involving sexual harassment in the workplace.
34 Workplaces are inanimate and incapable of being subjected to sexual harassment. What makes a workplace animate are the people who work in it and the relations between them. The object of eliminating sexual harassment in the workplace is thus to be understood as directed at the elimination of sexual harassment from the work based relationships and the workplace environment of persons who work together for or in a common enterprise, or in other words a common workforce. That, it seems to me, is the mischief that s 28B is directed to addressing.
35 However, whilst the task of statutory construction must take account of the mischief to which a provision is directed, that task must commence with the words used: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 at [39] (the Court).
36 The terms of s 28B appear to have been framed so as to capture within their protective scope, various kinds of relationships which are commonly found in a workplace. Protection from sexual harassment is conferred by reference to different criteria identified in each of the subsections of s 28B. Each criterion utilised requires that a connection referrable to being a member of or prospective member of a common workforce be in existence between the person harassing and the person harassed. Each of s 28B(1), (3) and (5) fasten upon a workplace relationship criterion such as the relationships between employer and employee, principal and agent or partner and partner as the basis for the connection to a common workforce. Each of s 28B(2) and (4) utilise fellowship as a co-worker as the basis for the requisite connection to a common workforce. Section 28B(6) utilises a commonality of workplace as the nexus in relation to harassment which takes place at that workplace. In each case, what is sought to be provided for, as a requisite element of eligibility for protection, is that both the person harassing and the person harassed have a sufficient nexus (or prospective nexus) to the same workforce in the sense earlier described. It can be seen that the purpose of the provision is to address sexual harassment as between members of the same workforce rather than harassment which merely occurs at a workplace and which may, for example, have been engaged in by a visitor or other interloper.
37 Temporal considerations such as whether the harassment occurred during working hours or whilst the participants were working, are not expressly referred to in s 28B and nor does the underlying policy objective suggest that such a restriction was generally intended. In the case of two fellow employees, a contravention of s 28B(2) was found by Branson J in Leslie v Graham [2002] FCA 32, where the sexual harassment occurred out of work hours in a serviced apartment that the employees were sharing whilst attending a work-related conference.
38 The definition of “workplace” in s 28B(7) is cast in wide terms. A “workplace” is not confined to the place of work of the participants but extends to a place at which the participants work or otherwise carry out functions in connection with being a workplace participant. Section 28B(6) itself speaks in similar terms of “a place that is a workplace” of both participants. The inclusive definition of “place” in s 28B(7) is also in wide terms and facilitates various means of transport (“ship, aircraft or vehicle”) being a “workplace” if the other criteria for that definition are satisfied. That wide approach recognises that work or work based functions are commonly undertaken in a wide range of places (including on various means of transport) beyond the principal or ordinary place or places of work of workplace participants from a common workforce. Such places would commonly include the premises of clients, suppliers, associated businesses, conference halls and other venues where work functions are held and in transportation vehicles during work related travel. The underlying policy objective is accommodated by such a construction and such a construction is also consistent with the scope of the other subsections of s 28B.
39 The restriction which limits the operation of s 28B(6) and maintains a sufficient nexus between the place and the workforce is that the place must be “a workplace of both” workplace participants.
40 I need not identify the outer limits of the scope of s 28B(6). It is sufficient for current purposes to observe that there is no warrant for adopting the construction for which Mr Vergara contends.
41 There is no issue that the LLA office was, at the relevant time, the usual place of work of both Mr Vergara and Ms Ewin. In relation to any sexual harassment by Mr Vergara of Ms Ewin at that place, if all other requirements are satisfied, there will have been a contravention of s 28B(6) irrespective of whether the sexual harassment occurred during working hours and irrespective of the purpose for their attendance at that place. The requisite nexus will have been provided by the fact that the LLA office was a place where both Mr Vergara and Ms Ewin worked.
42 As will become apparent, some of the incidents of sexual harassment alleged against Mr Vergara occurred outside of the LLA office. Whether the requisite nexus required by s 28B(6) existed in the place at which the incident occurred is a matter I will deal with when I consider each of the incidents concerned.
43 Further, I reject Mr Vergara’s contention that the meaning of “workplace” is confined to premises exclusively utilised by the workforce of which the workplace participants are members. That construction was put by Mr Vergara in aid of his contention that an office building corridor situated between the front door of the LLA office and the lifts on the same floor, was not a “workplace” of Ms Ewin and himself. The wide definition of “workplace” provides no textual support for Mr Vergara’s contention. No discernible policy objective was suggested for such a construction and the object of the provision would be significantly undermined if such a narrow construction was adopted. Section 28B(6) fixes upon a place where workplace participants of the same workforce gather and interact in order to work. The objective of eliminating sexual harassment in the workplace would be significantly undermined if, associated common areas such as entrances, lifts, corridors, kitchens and toilets were construed as falling beyond the geographical scope intended by s 28B(6).
44 Before recording the factual findings I have made, it is necessary that I record the manner in which I have weighed different forms of evidence, including the approach I have taken to the reliability of evidence given by each of Mr Vergara and Ms Ewin.
45 In searching for the truth, judges are often left to choose between competing and conflicting versions of the same event. This case has been no exception. The determination of this application has required me to choose between diametrically opposite accounts of the same event on countless occasions. I have done so recognising that a witness’ preconceptions may influence his or her perceptions of an event and that the later recount of that event will involve a reconstruction of a memory which may be unconsciously affected by a tendency to revise the memory of a past event by reference to subsequent events or some other process of rationalisation. When the relevant events occurred more than three years before the event is recounted, as was the case for each of the witnesses called in this proceeding, there is greater scope for revision to intrude. For that and other reasons, reconstructed memory becomes less reliable.
46 The events concerned and the nature of the allegations to which those events relate, can also bear upon the reliability of reconstructed memory. A case like this, in which the background facts involve allegations of rape and in which emotions and animosities between the principal protagonists remain raw, provides a context where reconstructed memory faces the most difficult of challenges.
47 It will come as no surprise that I have, in the circumstances, found it necessary to adopt a cautious approach to the evidence of the two principal protagonists, especially where their conflicting evidence relates to a central issue in the case.
48 Inevitably, my assessment of the evidence has been influenced by general impressions I have formed of each of Ms Ewin and Mr Vergara. I well appreciate that an assessment based upon the demeanour of a witness may be of limited value. However, the impressions which I have formed are based on a great deal more than my extensive opportunity to see Ms Ewin and Mr Vergara in the witness box.
49 The evidence is replete with a large body of prior statements made by both Mr Vergara and Ms Ewin which I will shortly identify. That material has provided a useful point of comparison with evidence given by those witnesses in the witness box. That was particularly so in relation to statements contained in recorded conversations that were unrehearsed when made and which, at the time the relevant witness made them, the witness must have regarded the statement as unlikely to face critical review.
50 Whilst I have made many comparisons between evidence given in the witness box and that contained in prior statements, I have been mindful that by reason of the passage of time some inconsistency is to be expected, particularly in relation to matters of detail and events of relative insignificance.
51 My task of assessing the evidence has been made difficult because I have ultimately come to the view that, to varying degrees, evidence given by both Mr Vergara and Ms Ewin was unreliable and had to be rejected.
52 The degree to which I found each witness unreliable and the cause I attribute to that unreliability should be identified in general terms now, as it will help the reader to better understand my reasoning. The reasons why I rejected evidence of particular events is set out later as I consider each of those events.
53 My general impression of Mr Vergara is that he is an arrogant individual with little or no regard for the truth. During the trial, I frequently formed the view that Mr Vergara was making no attempt to give evidence candidly and honestly. He was generally unwilling to make reasonable concessions. He resisted doing so, even in the face of documentary evidence which he must have appreciated was undeniably against him. A telling illustration of that propensity, which I later record, was Mr Vergara’s refusal to concede that the subject of an email exchange with his wife concerned his dissatisfaction with their sex life.
54 Mr Vergara’s answers in cross-examination were often non-responsive and evasive. When he got into difficulty, he accused Ms Ewin’s Counsel of playing semantic games. He often attempted to justify prior inconsistent statements by reference to the “context” in which the earlier inconsistent statement had been made. However his evidence did not demonstrate why the earlier context made the inconsistency explicable.
55 Mr Vergara gave an elaborate account of events in which he sought to cast Ms Ewin in the role of sexual predator and he an unwilling victim forced into submission because he feared for his job. Evidence of a prior recorded statement made by Mr Vergara in which he conceded that he had said to Ms Ewin, “I want to fuck you till you scream”, was tellingly at odds with the role of victim in which Mr Vergara’s sought to cast himself in his evidence. This construct created by Mr Vergara in his evidence was also entirely at odds with what Mr Vergara may plausibly have been expected to tell police in defence of the allegation made by Ms Ewin that he had raped her. There were several other occasions, including the pretext conversations which I will shortly identify, where it might have been expected that Mr Vergara would have raised the sexually predatory behaviour of Ms Ewin if Mr Vergara’s later description of that behaviour even approximated the truth.
56 Once it became obvious that this construct was of recent invention and untruthful, and given the deliberateness and the scale of the fabrication, the conclusion that Mr Vergara was a witness prepared to say anything he thought would assist his case was inescapable.
57 Whilst I did not regard Mr Vergara as a credible witness, I have not necessarily rejected all of his evidence. I accept that a witness like Mr Vergara may have taken a strategic approach to the falsification of his evidence. The difficulty of course, is that a witness who does that invites the Court to speculate as to when the truth is being told and when it is not. The Court should not, and I have not, engaged in any such speculation. I have approached all of Mr Vergara’s evidence with suspicion. I have rejected it unless a cogent foundation existed (whether by reason of corroborating evidence or otherwise), which permitted me to regard Mr Vergara’s account as likely to be reliable.
58 I have also taken into account in that regard, the extent to which the evidence was in contest. As I regarded Ms Ewin’s evidence as generally more reliable than Mr Vergara’s evidence, unless there were particular reasons not to do so, I preferred the evidence of Ms Ewin. I did not accept Mr Vergara’s evidence when it conflicted with that given by other witnesses.
Observations about Ms Ewin’s evidence
59 It is unavoidable that I make some observations about the reliability of Ms Ewin’s evidence.
60 At the time of the events which are the subject of this proceeding, Ms Ewin was a hardworking individual who liked to project herself as capable and able to cope with any eventuality. She was however, a person far more vulnerable than the image of herself that she tried to project. I have no reason to think that in her dealings generally, she was other than an honest person respectful of the truth.
61 Ms Ewin’s life has been greatly affected by the events with which this case is concerned. I am satisfied for reasons I will later explain that she suffers from PTSD. Ms Ewin genuinely believes that she was raped by Mr Vergara. It is not surprising that, in those circumstances, she would have difficulty in distancing herself emotionally from the events which she regards as having destroyed her life.
62 Her animosity towards Mr Vergara was still raw at the time that she gave evidence. Ms Ewin’s capacity to control that animosity must have been significantly undermined by the fact that much of that evidence was given over four or five days of cross-examination conducted directly by Mr Vergara.
63 The direct cross-examination in a criminal case of an alleged victim of a sexual assault by the alleged perpetrator is prohibited by legislation in a number of States: see for example ss 356 and 357 Criminal Procedure Act 2009 (Vic), s 294A Criminal Procedure Act 1986 (NSW) and s 106G Evidence Act 1906 (WA). The underlying policy considerations for legislation of that kind including the potential for intimidation and re-victimisation are obvious and apply equally to a case such as this. Despite the potential problem being raised well in advance of the trial and pro bono legal advice being made available to Mr Vergara in relation to Mr Vergara’s rights and any restriction that the Court may impose, no application was ultimately made by Ms Ewin that Mr Vergara’s be precluded from personally cross-examining her. Ms Ewin did apply for her cross-examination to be conducted by video link and that is what occurred.
64 In my view, the reliability of Ms Ewin’s evidence was affected by being cross-examined directly by Mr Vergara. That was illustrated on a number of occasions, which I later detail, where I consider Ms Ewin gave untruthful answers to Mr Vergara but quite different and likely truthful answers to the same questions when those questions were put to her by the Court. There were other occasions where, despite her efforts to maintain control, Ms Ewin’s animosity usurped her capacity to give her evidence candidly and honestly.
65 In addition, the reliability of Ms Ewin’s evidence was also affected by her lack of objectivity on particular issues. I suspect that she suffered from a not unnatural propensity to assume the worst of Mr Vergara and also to try to absolve herself from responsibility for any perceptions (or misperceptions) that by reason of her own intoxication she had placed herself in a vulnerable position. Ms Ewin convinced herself that Mr Vergara had drugged her with a date-rape drug prior to raping her. The other possible and, on the available evidence, more plausible explanation for Ms Ewin’s heavily intoxicated state on the night in question was her own consumption of alcohol. Her evidence as to the amount of alcohol she consumed was evidence that I regard as unreliable.
66 Ms Ewin was particularly sensitive about any allegation that she had failed to report Mr Vergara or take action against him for the conduct she alleged he had engaged in. She was defensive as to that topic and gave some evidence which I regarded as untruthful. That evidence went primarily to the question of when it was she first realised that it was Mr Vergara who had sexually assaulted her, given that (as I accept) she had no memory of the alleged incident. The Nurse-On-Call conversation, which I will shortly explain, shows that on the morning of Sunday 17 May, Ms Ewin was clear in her own mind that she had been sexually penetrated on the evening of 15 May and had surmised that it must have been Mr Vergara who had assaulted her. In other evidence she sought to explain her alleged lateness in reporting the incident to her lack of clarity as to who it was who had sexually assaulted her.
67 I was also concerned that by reason of her animosity towards Mr Vergara, Ms Ewin tended to overstate her case by embellishing the frequency and extent of Mr Vergara’s sexual propositioning of her.
68 I have not formed the view that Ms Ewin was an actively dishonest witness. On the essential features of her account of the principal events, Ms Ewin’s evidence was consistent and cogent. However, I have taken a cautious approach to accepting Ms Ewin’s evidence and particularly so in relation to those topics mentioned above, where I considered her reliability to be particularly vulnerable. I have only accepted Ms Ewin’s evidence where I regarded it to be cogent and not significantly inconsistent with the prior statements she had made. Where her evidence was corroborated by other evidence, I had no difficulty accepting it.
69 As is already apparent, beyond the evidence given by witnesses at the hearing, a number of prior statements made by those witnesses, which included their accounts of many of the relevant events, were tendered and relied upon. In the course of these reasons, I will refer to many such statements. What follows is a description of prior statements which require some explanation as well as a list of the prior statements relied upon for the most significant witnesses called.
70 On the morning of 17 May 2009, Ms Ewin made a telephone call to a telephone nursing service named “Nurse-On-Call”. Ms Ewin was seeking advice on an anonymous basis regarding the steps she should take to deal with the risk of an unwanted pregnancy. A recording of the telephone conversation was subpoenaed and tendered by Ms Ewin. An unofficial transcript of the recorded conversation was prepared by Mr Vergara and with some amendment, was accepted as accurate by Counsel for Ms Ewin. I have read the transcript and I have also listened to the recording.
71 In June 2009, Ms Ewin made a formal complaint to Victoria Police in which she alleged that Mr Vergara raped her on 15 May. As part of the police investigation, Ms Ewin made telephone calls to Mr Vergara on 1 July 2009 and on 17 July 2009 from a police station in West Melbourne. These calls were recorded and are referred to as “pretext” calls. Their nature and the fact they were being recorded was not then known to Mr Vergara. Recordings and transcripts of these telephone conversations were subpoenaed and tendered by Ms Ewin. I have read the transcripts and listened to the recordings.
72 In the course of the police investigation, Mr Vergara was interviewed by police on 18 November 2009. A video recording and the transcript of that interview were discovered by Mr Vergara. Initially Mr Vergara objected to the tender of this evidence on the basis that it was improperly or illegally obtained. However that objection was subsequently abandoned. I have read the transcript of the police interview.
73 Ms Ewin submitted a worker’s compensation claim to LLA in September 2010. The matter was referred to LLA’s insurer which appointed an investigator, MPOL Group (“MPOL”), to investigate Ms Ewin’s claims. In January 2011, MPOL conducted interviews with a number of the witnesses who gave evidence in this proceeding. The witnesses interviewed prepared statements that were said to record the evidence that they would be prepared, if necessary, to give in court as a witness. I have read each of those statements.
74 A report was prepared for the purposes of this proceeding by psychiatrist, Professor Lorraine Dennerstein. That report was tendered in evidence by Ms Ewin and Prof Dennerstein was called to give evidence at trial. As part of her report, Prof Dennerstein prepared a detailed account of the events that are the subject of this proceeding, as related to her by Ms Ewin.
75 In relation to Ms Ewin, the relevant prior statements are:
records of the telephone conversation between Ms Ewin and a provider at Nurse-On-Call on 17 May 2009 (“the Nurse-On-Call conversation”);
a statement of Ms Ewin given to Victoria Police on 11 July 2009 (“Ms Ewin’s statement to police”);
a letter from Ms Ewin to the directors of LLA dated 29 June 2010;
a letter from Ms Ewin to the Director of Public Prosecutions dated 30 June 2010;
a letter from Ms Ewin to the Centre Against Sexual Assault dated 30 June 2010;
a statement of Ms Ewin given to MPOL on 18 January 2011 (“Ms Ewin’s MPOL statement”); and
a report by Professor Dennerstein dated 6 December 2012 (“Prof Dennerstein’s report”).
76 In relation to both Ms Ewin and Mr Vergara, the relevant prior statements include records of two pretext telephone conversations between Ms Ewin and Mr Vergara on 1 July 2009 and 17 July 2009 (“the 1 July pretext conversation” and “the 17 July pretext conversation”).
77 In relation to Mr Vergara, a record of interview by Victoria Police on 18 November 2009 (“Mr Vergara’s record of interview”) was also relied upon.
78 In relation to Mr Donovan Newton, the Chief Financial Officer of LLA, the relevant prior statements are:
a statement of Mr Newton given to Victoria Police on 30 December 2009 (“Mr Newton’s statement to police”); and
a statement of Mr Newton given to MPOL on 19 January 2011 (“Mr Newton’s MPOL statement”).
79 In relation to Ms Debra Thomas, an employee of LLA, her prior statements are:
a statement of Ms Thomas given to Victoria Police on 22 August 2009 (“Ms Thomas’ statement to police”); and
a statement of Ms Thomas given to MPOL on 21 January 2011 (“Ms Thomas’ MPOL statement”).
80 Statements given to Victoria Police by Orea Tsafanos, an employee at the Insignia Bar and by Cameron Lowe, an employee of the Melbourne Aquarium, on 9 August 2009 and 30 December 2009 respectively, were also relied upon. As were statements given to MPOL by Virginia Kubik who provided human resources services to LLA and Mark Lafferty, an employee of LLA, on 19 January 2011 and 21 January 2011 respectively.
81 Despite my urging that he seek legal representation, including my indication that access to the Court’s pro bono scheme was likely to be available, Mr Vergara was steadfast in his resolve that he could best represent himself at the trial. The fact that Mr Vergara was not legally represented led to some difficulties which require a short explanation.
82 The trial was conducted on the basis that witnesses would give oral evidence. In advance of the trial, I directed that an outline of the expected evidence of each witness be exchanged so that each party had notice of the substance of the evidence likely to be called by the other. That was done. However, when Mr Vergara first stepped into the witness box to give his evidence, he applied to rely upon a comprehensive pre-prepared witness statement (“Mr Vergara’s witness statement”) as his evidence-in-chief. I was persuaded to permit Mr Vergara to rely on his witness statement. Given that Mr Vergara was unrepresented, that seemed a convenient way to proceed. Whilst Counsel for Ms Ewin did not oppose Mr Vergara being permitted to rely on his witness statement, objections were raised as to the content of that witness statement.
83 Mr Vergara’s witness statement dealt with a range of conversations and other conduct involving Ms Ewin which, amongst other accusations, described Ms Ewin as having engaged in what Mr Vergara characterised as sexually predatory behaviour. None of that conduct and the accusations made by Mr Vergara in reliance upon it was put to Ms Ewin when she was earlier cross-examined by Mr Vergara. Counsel for Ms Ewin objected to the Court receiving into evidence those passages in Mr Vergara’s statement which should have been but were not put to Ms Ewin in cross-examination. Counsel relied on the rule in Browne v Dunn to support Ms Ewin’s objection to the tender of that evidence.
84 I determined that, unaware of the rule in Browne v Dunn, Mr Vergara had not given Ms Ewin an opportunity to deal with a range of conversations and other matters in which she was involved which were the subject of Mr Vergara’s witness statement. I did not however consider that the evidence in question should be excluded. Instead, I determined that I would provide Ms Ewin with an opportunity to rebut the evidence. I considered that such a course was available by reason of s 46(1) of the Evidence Act 1995 (Cth). Ms Ewin’s Counsel proposed that an affidavit from Ms Ewin be tendered but that the Court not permit Mr Vergara to cross-examine Ms Ewin in relation to her rebuttal evidence. It was contended, and I agreed, that any further cross-examination of Ms Ewin would be oppressive. At that point, Ms Ewin had been in the witness box for four or five days and had been the subject of cross-examination for three of those days. I also took into account Ms Ewin’s psychological condition and the fact that Mr Vergara had a prior opportunity, not taken, to cross-examine Ms Ewin about the matters which were likely to be covered in her rebuttal evidence. Pursuant to my ruling, Ms Ewin tendered an affidavit made on 10 December 2012 which set out her evidence in rebuttal (“Ms Ewin’s rebuttal evidence”).
85 Whilst Mr Vergara’s witness statement addressed chronologically the time period dealt with in Ms Ewin’s evidence and covered most of the events the subject of Ms Ewin’s sexual harassment claim, Mr Vergara did not directly deny much of the evidence of his conversations and his conduct given by Ms Ewin. Instead, his evidence (given mainly through his witness statement) offered his own different account of the same events without directly addressing Ms Ewin’s account.
86 Additionally, in Mr Vergara’s cross-examination of Ms Ewin, although he tendered prior statements made by Ms Ewin, in the main, Mr Vergara did not take Ms Ewin to the parts of those statements which arguably contained inconsistent statements to the evidence given by her at the hearing.
87 In assessing the evidence, I have taken an approach which gives some leeway to Mr Vergara by reason of the fact that his neglect was the likely consequence of his lack of legal representation. I am satisfied that approach has not occasioned any significant procedural unfairness upon Ms Ewin.
88 Where Mr Vergara dealt with an incident and gave an account inconsistent with that given by Ms Ewin, I have treated that account as including a general denial of Ms Ewin’s account, despite Mr Vergara not having expressly made such a denial. I have also taken into account inconsistencies between prior statements made by Ms Ewin and the evidence she gave at the hearing, despite the fact that Mr Vergara failed to give Ms Ewin an opportunity to directly deal with those matters. Where I have done that, I have attached less weight to any inconsistency than I would have if Ms Ewin had been taken to it.
Section 46PR of the Australian Human Rights Commission Act
89 In a proceeding such as this, the Court is not bound by technicalities or legal forms: s 46PR of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”). In dealing with the evidence as described above and also in addressing the pleadings, I have endeavoured to avoid a legalistic approach and to instead focus upon on the substance of the case: Walker v Victoria [2012] FCAFC 38 at [81] (Gray J).
Section 140 of the Evidence Act
90 The final matter I need to explain in relation to the task of assessing the evidence is that Ms Ewin bears the onus of proof and the applicable standard is the civil standard of proof prescribed by s 140 of the Evidence Act. Section 140 is in the following terms:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
91 In determining whether I was satisfied that Ms Ewin’s case has been proved on the balance of probabilities, I was required to take into account the matters identified in s 140(2) of the Evidence Act. In doing that, I applied the helpful observations made about the three matters mentioned in s 140(2) by Branson J in Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [123]-[139] (referred to with approval by French and Jacobson JJ at [110]).
92 Those observations were made in a not dissimilar context to the present and where the requirements of s 140(2) were considered and applied to a claim involving allegations of contraventions of the Racial Discrimination Act 1975 (Cth) (“the RD Act”).
93 In considering the matters referred to in s 140(2), Branson J noted that moral opprobrium may, but will not necessarily attach, to discriminatory conduct (at [133]); anti-discrimination legislation is to be regarded as beneficial and remedial legislation (at [134]); that the absence of intent as a requisite element of the conduct proscribed diminishes the opprobrium attached to and the gravity of a finding of contravention (at [135]); and that not all contraventions are equally grave, the gravity of a contravention will vary depending upon the seriousness of the allegations made (at [137]).
94 Each of those observations made by Branson J in relation to the RD Act are apposite in their application to the SD Act. As Branson J said at [139], to adopt as a starting point a position that discrimination is a serious matter not lightly to be inferred, will have a tendency to lead a trier of facts into error. Her Honour continued:
The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings 67 ALJR 170; 110 ALR 449, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved — and, I would add, the circumstances in which it is sought to be proved.
95 The passage referred to by Branson J from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 should be set out in full. At 170-171 Mason CJ, Brennan, Deane and Gaudron JJ said:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
[Footnotes omitted.]
96 I now turn to consider the facts and record my findings.
97 It is necessary to set out here the background facts relating to Ms Ewin, Mr Vergara and their workplace. Unless otherwise indicated, these facts are non-contentious.
98 Ms Ewin is a Chartered Accountant by profession. At the time of the events the subject of this proceeding, Ms Ewin was 36 years old and was recently married. Ms Ewin started out her career at a large international accounting firm before moving overseas for a period and eventually settling in Melbourne and taking up a series of finance and accounting roles with a number of large Australian companies.
99 Mr Vergara is also a qualified accountant. At the time of the events the subject of this proceeding, Mr Vergara was 40 years old. He was married and had children. Mr Vergara obtained an accounting degree from Victoria University and was first employed at a large international accounting firm. Following that role, Mr Vergara undertook a range of finance and accounting jobs for a number of different companies both in Australia and abroad. For the most part Mr Vergara was employed in accounting roles which he described as “intermediate” in terms of his seniority.
100 In late 2008, Ms Ewin was employed on a permanent basis as Group Financial Controller for LLA. LLA was the parent operating entity for various leisure businesses including aquariums and ski fields, located in Australia and across Asia. Around the time Ms Ewin commenced employment with LLA, the company’s head office was relocated from Southport in Queensland to Melbourne and the existing finance and accounting staff were retrenched. This occurred following the near financial collapse of LLA, which necessitated a recapitalisation and financial restructure of the company.
101 Ms Ewin was employed to oversee the transfer of LLA’s accounting functions from its offices in Queensland to its new headquarters in Melbourne as well as to assist in the preparation of accounts and to oversee other finance and accounting staff. Ms Ewin reported directly to the LLA Chief Financial Officer, Donovan Newton who in turn reported to the company Chief Executive Officer, John Schryver.
102 Due to her significant responsibilities, Ms Ewin’s workload whilst at LLA was immense and she was regularly working 14-hour days.
103 In Melbourne, Ms Ewin oversaw a small team of finance and accounting staff. Initially Ms Ewin had one full-time employee reporting to her but in March 2009, that employee was fired. In the same month two new accounting staff were retained reporting directly to Ms Ewin. Mark Lafferty was hired as a full-time employee in a junior accounting role and Mr Vergara was engaged through Robert Walters in a more senior accounting role on a short-term contract basis.
104 Ms Ewin, Mr Vergara and Mr Newton gave varying accounts of the events surrounding Mr Vergara’s engagement by LLA. The facts that are not in dispute are that Mr Newton passed on resumes of suitable candidates provided by Robert Walters to Ms Ewin and Ms Ewin was charged with conducting interviews. Ms Ewin then met Mr Vergara at a coffee shop close to the LLA office and conducted an interview. During that interview, Mr Newton attended to meet Mr Vergara. Both Ms Ewin and Mr Newton considered that Mr Vergara was suitable for the role and Mr Vergara was subsequently retained to provide accounting services under a three month contract between LLA and Robert Walters. Robert Walters separately contracted with Mr Vergara for Mr Vergara to provide services to LLA.
105 While Ms Ewin claimed that the ultimate decision to hire Mr Vergara rested with Mr Newton, it was Mr Vergara’s contention that Ms Ewin offered him the role before Mr Newton attended at the interview and it was Ms Ewin who had made the decision to hire him. Mr Newton gave general evidence that Ms Ewin was primarily responsible for identifying staff to work for her but that he signed off on her choice. Mr Newton stated that he was effectively employing staff at Ms Ewin’s behest.
106 Following the interview, Mr Vergara entered into an employment contract with Robert Walters for the purpose of supplying his services to LLA. The agreement described Mr Vergara’s tasks and duties in the following terms: “Interim Financial Controller (various projects and accounting duties)”. Under the contract, Mr Vergara was to comply with all directions, rules and policies given to him by LLA and was to conduct his work at the places nominated by LLA. The contract stated that it was anticipated that Mr Vergara would work 40 hours per week and would be paid an hourly rate (inclusive of a 20% casual loading) plus an additional nine per cent superannuation. As a casual employee, the contract stated that Mr Vergara was not entitled to any paid annual, personal, compassionate or parental leave and would not receive payment if he did not work. The term of the contract was from 16 March 2009 to 12 June 2009.
107 Mr Vergara tendered without objection a document setting out terms and conditions for the supply of temporary contractors by Robert Walters. The document is dated 10 November 2008 and is signed by Mr Newton of LLA. Although it was not expressly asserted by the parties, I will proceed on the basis that those terms and conditions applied to Mr Vergara’s assignment at LLA. The terms and conditions state that Robert Walters introduces and supplies a temporary contractor to the client (in this case LLA) to perform the assignment specified in a schedule. The schedule was not tendered. In performing the assignment, a temporary contractor remains an employee of Robert Walters which is solely responsible for the payment of superannuation, worker’s compensation and taxes incidental to the employment of the temporary contractor. Robert Walters is to receive payment at a specified hourly or daily rate in accordance with the hours or days worked by the temporary contractor and is responsible for paying wages to the temporary contractor. The client (LLA) is responsible for the direction and control of the temporary contractor during any assignment and is responsible for all acts, omissions and errors of the temporary contractor. If the assignment is altered in any way the client must notify Robert Walters and if the assignment is extended, the terms and conditions state that they continue to apply.
108 For reasons that will later become clear, it is necessary to set out various background facts relating to the LLA offices, including their location and internal arrangement.
109 Following relocation from Queensland, the LLA head office was located at level 13, 474 Flinders Street, Melbourne. The office building was on the corner of Flinders Street and Highlander Lane, which is located between King Street and William Street in the Melbourne central business district. This location is approximately half way between Flinders Street and Southern Cross train stations and while staff tended to commute via Southern Cross, some also used Flinders Street station.
110 LLA occupied only a small part of level 13 which also housed the offices of numerous other tenants. The floor contained a communal kitchen shared by all tenants on level 13 as well as men’s and ladies’ toilets, a change room and access to four lift wells. From the lifts it was a short walk across a corridor to the office of LLA.
111 The staff located at the LLA office in Flinders Street included Mr Schryver, Mr Newton, Ms Ewin, Mr Vergara, Mr Lafferty, Ms Thomas who was the executive assistant to both Mr Newton and Mr Schryver as well as Chirine Chin, a compliance officer and John Peng, a business analyst.
112 The LLA offices were housed in two adjoining sections, each accessed from the corridor which gave access to the lifts. One section contained the offices of the CFO and CEO along with their executive assistant, Ms Thomas. The other section was occupied by the remaining staff and a photo copy room. LLA also had a board room on the same floor separated from the staff offices by the offices of another tenant.
113 Ms Ewin, Mr Vergara and Mr Lafferty shared an office containing three work stations. Ms Ewin had an ‘L-shaped’ desk with one part adjacent to the window and the other part facing across the room towards a second desk lined up against the window. Ms Ewin had her computer at the junction of the ‘L-shaped’ desk and sat facing across the room towards the second desk. That second desk was occupied by Mr Vergara who sat facing out the window. Mr Lafferty sat away from the window, close to the doorway to the office. Mr Lafferty sat with his back to his colleagues looking outward into the corridor towards the photo copy room and an alcove where Mr Peng was seated. The light switch for this office was next to Mr Lafferty’s desk, at the entrance to the room.
114 The earliest pleaded allegation of sexual harassment relied upon by Ms Ewin concerns conduct alleged to have occurred on 12 May 2009. There was however conduct in April and early May 2009 that was relied upon by Ms Ewin in support of her pleaded case. There was also conduct in that period upon which Mr Vergara relied. I will deal first with the conduct relied upon by Mr Vergara.
115 Mr Vergara deposed that from early April 2009 the behaviour of Ms Ewin towards him was “intrusive, flirtatious and coercive” and that Ms Ewin engaged in what he characterised as “sexually predatory behaviour” which made him very uncomfortable and wary of her.
116 Mr Vergara deposed that from early April 2009, Ms Ewin regularly made bodily contact with him by rubbing the top part of his arm when she was happy with a task that he had completed, that she would put her arm around his shoulder whilst he was seated and that she would talk to him closely from one side. He said that he found that contact quite uncomfortable and abnormal but initially did not think much of it. However, he deposed that the “touchy” behaviour increased in intensity and became inappropriate massaging. He claimed that in early April 2009, Ms Ewin told him that she had undertaken a massage course and that she was an expert in the field. Ms Ewin told him that she would like to give him a massage because he looked tired and stressed. He thought that the offer of a massage was inappropriate and he tried to ignore the suggestion. His evidence was to the effect that despite his reluctance, Ms Ewin walked behind him whilst he was sitting at his desk and proceeded to put her hands on his shoulders and his neck and started to massage him. He asserted that whilst he thought it very uncomfortable and awkward, he felt that he wasn’t in a position, as a temporary contractor, to resist his boss. He said that the massaging continued and occurred a further handful of times over the following four or five weeks. The massaging would typically take place late in the day when others had left the office.
117 Mr Vergara deposed that the massaging continued to the point where he had enough and asked Ms Ewin to stop. She responded that he should “chill-out” and told him that it was just a massage and that it would help relax him. Ms Ewin would commence massaging him and then ask for him to turn his chair around and would proceed to massage him from a frontal position whilst he remained seated. She faced him and demanded that he close his eyes and rest his head on the back of his chair. Ms Ewin would then place one of her legs in between his legs and her other leg on the outside of his leg and at all times her legs were touching his. Ms Ewin’s hands would slowly work from his head to his neck and his shoulders and then up again to his head. That would continue for about two or three minutes each time. On many occasions Mr Vergara tried to break “this personal contact” by referring to a need to call his wife or pick up his son or by saying that he needed to go to the toilet.
118 Mr Vergara further stated that as, what he characterised as Ms Ewin’s “sexual predatory behaviour”, intensified, he decided to bring to work a photograph of his children in order to demonstrate to Ms Ewin that he was happily married and was a proud father of three young children. Despite the photographs triggering conversations with Ms Ewin about his children and family life, Ms Ewin was not discouraged from her physical touching and advances towards him.
119 Mr Vergara also claimed that towards the end of April 2009, Ms Ewin started asking him about personal matters involving his wife. He stated that simple questions were followed by more intrusive questions such as the shape of his wife’s body including the size of her breasts. When Ms Ewin asked about his wife’s breasts, she also stuck her chest out and pulled her blouse tightly around her chest so that he could get “a visual comparison”. Mr Vergara claimed he was shocked by these actions and was astounded by Ms Ewin’s inappropriate behaviour which made him feel embarrassed and awkward. From this point onwards, Mr Vergara claimed that Ms Ewin’s questions got more and more personal and she specifically started quizzing Mr Vergara about his intimacy with his wife. Ms Ewin told him that she was questioning herself as to whether she had made the right choice in marrying her husband. She told Mr Vergara that her sex life with her husband was less than fulfilling. Ms Ewin then asked him how often he and his wife had sex to which he responded he would not share that with her. In response, Ms Ewin said that she was just seeking a comparison to see if she had drawn the short straw in relation to intimacy with her partner. Mr Vergara further stated that Ms Ewin told him that her husband takes Viagra because he suffers from erectile problems and that she found that very frustrating.
120 Mr Vergara deposed that as part of the same conversation, Ms Ewin then asked him about the manner in which his wife had delivered their children. He said that whilst he didn’t like the personal nature of the question, he thought it was innocent enough and told Ms Ewin that his children had been born naturally and without caesarean section. Ms Ewin then stated words to the effect, “How awful it must be for women to lose elasticity down there”. That, he stated, was followed by what Mr Vergara characterised as a vile comment as follows, “You must miss the enjoyment and pleasures of a tight vagina, having kids loosens everything, so I’ve been told”. Whilst he suggested that he was horrified by these comments, Mr Vergara’s evidence was that because Ms Ewin was his direct boss and he feared her dismissing him, he held his composure and explained to Ms Ewin, “God created a perfect female reproductive system which enabled the female body to retract in every regard”.
121 Mr Vergara deposed that during the last week in April (or possibly early May), Ms Ewin suggested that the two of them go out for drinks after work to unwind. She made a comment about her work ethic and said that she liked to work hard and play even harder.
122 Other than in relation to the alleged massaging, none of the conduct alleged as part of Mr Vergara’s account of Ms Ewin’s “sexually predatory behaviour” was put to Ms Ewin in Mr Vergara’s cross-examination of her. In her rebuttal evidence, Ms Ewin denied the truthfulness of the evidence relating to her alleged predatory behaviour which she had not been given the opportunity to deal with whilst giving her oral evidence. She accepted that Mr Vergara had brought into the office a photo of his children.
123 Ms Ewin is a qualified masseur. She deposed that she became qualified in early March 2009 and that as she had been doing the course part-time, it may have been the subject of some discussion at LLA. Mr Vergara did not specifically put to Ms Ewin the details of the allegations he made about her touching and massaging him. Ms Ewin was asked in cross-examination whether she had ever put her hands on Mr Vergara. She denied that she had ever done so. She was also asked how often she had massaged Mr Vergara to which she answered, “None”. She further denied that she had ever massaged Ms Thomas, Mr Newton or any other named individuals working at LLA. Ms Thomas and Mr Newton were called by Mr Vergara. They were not asked by Mr Vergara whether they had been massaged by Ms Ewin. There was no evidence from any other witness that Ms Ewin had provided massages to anyone working at LLA.
124 Mr Vergara was cross-examined in relation to his allegations that Ms Ewin had massaged him. He had difficulty identifying when the massaging started other than that it was in early April. He was unable to recall how often and when in each of the subsequent weeks the massaging had occurred other than that it had occurred “6 or 8 times, somewhere around there…about less than 10 times”. When, based on his own account that the massaging had lasted four or five weeks, it was suggested to him that the massaging had stopped, Mr Vergara said, “I wouldn’t say the massaging stopped”. When he was then reminded of his own evidence, Mr Vergara responded with, “It may have been six [weeks]”.
125 Mr Vergara’s evidence that he had been the victim of massaging and other inappropriate sexually predatory conduct was inconsistent with other evidence given by him. There was tension between Mr Vergara’s evidence that his relations with Ms Ewin were cordial and that there was camaraderie between he, Mr Lafferty and Ms Ewin and his evidence of “intrusive, flirtatious and coercive” and “sexually predatory” behaviour towards him by Ms Ewin.
126 When cross-examined as to the nature of his relationship with Ms Ewin, Mr Vergara described it as “good to very good”, despite having just said that he had been “scared” of Ms Ewin, that he had been “uncomfortable” around her and that he had been “sexually harassed” by her.
127 Once this apparent inconsistency was identified, Mr Vergara became evasive in his evidence as to the nature of his relationship with Ms Ewin. He said aspects of the relationship were “close” and that they were close “at times”. Yet at another point of his cross-examination, Mr Vergara described the relationship as “volatile”. At that point he was taken to his police statement in which he described his relationship with Ms Ewin as “a close relationship”. When asked which was a true reflection of his view of the relationship, he eventually said that he had been confused by the cross-examination and that what he meant to say was that “Ms Ewin was a volatile person and the relationship was OK”. Mr Vergara was then taken to his statement to police where he had said that he and Ms Ewin “got along really well”. He referred to that statement as true “in that context”. When challenged as to what “in that context” meant, Mr Vergara was unable to give a coherent explanation. He suggested that he had felt very confused in the police interview.
128 In the answers Mr Vergara gave to police, he spoke of his good relationship with Ms Ewin on a number of occasions. He said at one point that it was so good that he was regarded by her as a “trusted source”. He said he did not recall having an argument with Ms Ewin “over anything”. He said “there was never an argument or confrontation with Jemma”.
129 The statements made to police about the nature of Mr Vergara’s relationship with Ms Ewin are strikingly inconsistent with Mr Vergara’s evidence that she had engaged in sexually predatory behaviour, that he feared Ms Ewin and that he had been very uncomfortable around her. At no stage in the record of interview with police did Mr Vergara raise any suggestion of such conduct by Ms Ewin. When it was put to him that he never mentioned sexual harassment by Ms Ewin to the police, Mr Vergara explained that he thought that the police were not interested in sexual harassment in the workplace. That remark was disingenuous. As I later record, Mr Vergara did not deny to police that he had engaged in sexual activity with Ms Ewin on 15 May 2009. He was well aware during the record of interview that a critical issue of interest to police was the question of whether Ms Ewin had consented. In that context it would have been highly relevant for Mr Vergara’s to have raised with police conduct of a sexual nature initiated by Ms Ewin when being questioned about his alleged rape of her.
130 Mr Vergara had ample opportunity to tell the police of Ms Ewin’s “sexually predatory” conduct. He was specifically asked why he thought Ms Ewin had made the allegation of rape to police, to which he said he had “no idea”. Ultimately, in his cross-examination, he agreed that Ms Ewin’s alleged conduct was highly relevant to his defence of the complaint made against him by Ms Ewin to police. At that point, he said that in hindsight he should have raised those matters. He sought to further explain his failure to raise those matters by alleging that he was dealing with people who had tricked him. In that regard he referred to the record of interview as “a set-up”. Those comments appear to be based on Mr Vergara’s view that he had been the subject of trickery by reason of the involvement of police in arranging the pretext conversations. His excuses were unpersuasive.
131 I am satisfied, having observed the manner in which Mr Vergara defended himself in this proceeding and the manner in which he responded in the record of interview with police, that if Ms Ewin had engaged in the “sexually predatory” behaviour alleged, Mr Vergara would have raised that conduct and relied upon it in the record of interview.
132 Mr Vergara’s evidence in cross-examination was that when Mr Lafferty left the office that was shared with Ms Ewin and himself, the conversation changed and that Ms Ewin became a sexual predator. That evidence was inconsistent with what he told police during the record of interview. When asked in that interview whether the conversation changed when Mr Lafferty left the room, Mr Vergara said that the conversation was no different and was always the same.
133 I reject in its entirety Mr Vergara’s evidence as to what he described as Ms Ewin’s “sexually predatory” conduct. Mr Vergara’s evidence-in-chief as to the nature of his relationship with Ms Ewin was inconsistent with those allegations. In cross-examination Mr Vergara was highly evasive and completely unpersuasive when he was challenged as to these allegations. Further, the allegations are inconsistent with what he told police and it is highly probable that if the allegations were true, Mr Vergara would have raised them with the police in defence of the allegations made against him by Ms Ewin. There is no evidence of Mr Vergara ever raising the allegations prior to having done so in this proceeding. That Mr Vergara was a victim of predatory conduct and was not himself the sexual predator, is inconsistent with the findings I later record including the findings of explicit requests for sexual intercourse made by Mr Vergara to Ms Ewin.
134 Mr Vergara’s allegations are untruthful and are matters of recent invention. The fact that the allegations were made and the comprehensive nature of the untruthful evidence which was given in support of them, served to confirm my view that Mr Vergara was not a credible witness.
135 On 2 April 2009, there was an exchange of emails between Mr Vergara and his wife which raised a background issue upon which Ms Ewin relied. Ms Ewin relied on the exchange to demonstrate that in or about April 2009, Mr Vergara was more likely to be sexually adventurous because the emails evidence Mr Vergara’s then dissatisfaction with his sexual relations with his wife. The emails deal with private matters the detail of which it is not necessary for me to set out in these reasons. I accept that the content of the emails unequivocally support a finding that Mr Vergara then held the view that his sexual relations with his wife were unsatisfactory. An inference is therefore available that Mr Vergara may have been more receptive to alternative sexual relations. Whilst I draw that inference, it is not significant to the conclusions I have reached.
136 More significant to the resolution of the issues in this case, was the damage to Mr Vergara’s credibility which his evidence about these emails caused. Mr Vergara’s evidence about the subject matter addressed by these emails was untruthful. The topic dealt with by the emails was obvious from their content even though a coded reference to sex was made by the use of the term “S..”. Mr Vergara gave a number of completely implausible accounts as to the topic dealt with by the emails in his attempts to deny that the topic was sex between he and his wife. His preparedness to say whatever he thought may assist his case was illustrated by his evidence that the reference to “S..” and thus the topic dealt with by the emails, could have been “sleep” or “lack of sleep”.
137 In relation to the evidence given about these emails, I have taken into account that the topic dealt with was both sensitive and embarrassing, particularly given the presence in court of Mr Vergara’s wife. However, the instance in question was not an isolated event and significantly contributed to the finding I have made that Mr Vergara was not a credible witness and was prone to say whatever he thought may assist his case.
138 On 21 April 2009, Ms Ewin was absent from work and at home ill. Ms Ewin gave evidence that Mr Vergara called her and expressed concern about her health. Ms Ewin deposed that Mr Vergara offered to do some grocery shopping and to come over to Ms Ewin’s home to cook her some soup to aid her recovery. Ms Ewin rejected the offer. The incident was referred to in the statement which Ms Ewin gave to police. Mr Vergara did not deny the conversation or what Ms Ewin deposed was said by him. He said it was possible he may have made the offer but he could not recall. I accept Ms Ewin’s evidence.
139 On 29 April 2009, Mr Vergara circulated an email to Ms Ewin and two male employees at LLA. The email included a number of sections through which the reader was invited to scroll. The opening section contained what looks like a picture of a woman’s buttocks dressed in a G-string bikini bottom. On scrolling through the email it becomes apparent that the picture is actually a close up of a small section of a string tied Polish sausage. The email ends with the caption, “What did you think? I only send out clean E-mails!” On its own the email is not particularly significant. It is however somewhat indicative of an attitude to women which is confirmatory of the findings I have elsewhere made about Mr Vergara’s inappropriate sexual conduct.
140 Ms Ewin deposed that on a Friday (which she thought was 9 May 2009 but was in fact 8 May 2009), Mr Vergara asked her whether she would be coming in to work on the weekend. He told her that he had work to finish and insisted that she should come in and supervise him. Ms Ewin responded that she would be coming in to get some files on the Saturday but would be working from home. She attended the office on the following day to pick up some files. Mr Vergara was there working. There was a conversation between them in which Mr Vergara said that her outfit looked lovely on her. Ms Ewin’s evidence was that she was wearing a pair of “commando pants” and that Mr Vergara said that she looked like she was ready for battle and that he really liked what she was wearing. Mr Vergara then asked whether she was staying. When Ms Ewin told him she was going home, he queried why she was rushing off and suggested that they go out and get a drink together. Ms Ewin rejected the offer and left.
141 In cross-examination, Ms Ewin said that she did not think Mr Vergara was making a pass at her and did not consider what he did to be harassment. She said however that the conduct had made her feel intimidated and uncomfortable. Mr Vergara did not deny this incident. I accept Ms Ewin’s account of it.
142 In early May, Ms Ewin joined Mr Vergara on one of his regular jogs at lunchtime. Mr Vergara had, by an email sent on 11 May 2009, issued a general invitation to Mr Newton, Mr Lafferty, Mr Peng and Ms Ewin to join him on a lunchtime jog. Ms Ewin took up the invitation on one occasion. Ms Ewin’s evidence was that whilst she jogged in front of Mr Vergara, he commented to her that with a little effort and his help two or three times a week they could run together and he could get her in shape. Mr Vergara asked about her marriage and commented that his was dull.
143 Ms Ewin further deposed that at or about that time and whilst walking behind Ms Ewin in the office, Mr Vergara said to her that she was in good nick for someone who had borne two children. Ms Ewin responded by pointing out to Mr Vergara that she had no children and that the pictures in her office of children were pictures of her niece and nephew.
144 Mr Vergara confirmed that he had encouraged his work colleagues, including Ms Ewin, to jog with him and that Ms Ewin had done so on one occasion. Mr Vergara did not deny (either expressly or impliedly) evidence given by Ms Ewin as to what was said on the jog. Nor did he deny that he had commented to Ms Ewin that she was in “good nick”. I accept Ms Ewin’s evidence about those events.
145 Each of the four incidents upon which Ms Ewin relies in this period, support Ms Ewin’s assertion that Mr Vergara was sexually interested in her. On their own they would not justify such a finding, but together with other evidence I will shortly record, this evidence supports the finding that from at least early May, Mr Vergara was interested in Ms Ewin with a view to having sexual relations with her.
146 In late April or early May, LLA extended by 3 months its contract with Robert Walters for the provision by Robert Walters of Mr Vergara’s services. The extent of Ms Ewin’s involvement in the decision made by Mr Newton to extend the contract is the subject of some conflict in the evidence. Mr Newton’s evidence, which I accept, was that in late April he discussed with Ms Ewin Mr Vergara’s performance and whether they should take steps to extend his contract through to the end of September 2009. He said that on the basis of Ms Ewin’s confirmation that Mr Vergara was performing well, he extended the contract.
147 On the other hand, the evidence of Ms Ewin was that the decision to extend the contract was made without her knowledge or approval. It is more likely that given the supervisory role Ms Ewin had in relation to Mr Vergara’s work, Mr Newton would have consulted her about extending Mr Vergara’s engagement at LLA. Not much turns on this conflict in the evidence.
148 Ms Ewin deposed that on 12 May, Mr Vergara was supposed to complete some company consolidations. He told her that he couldn’t balance the consolidations and would need to deal with it the next day. Mr Vergara packed his bags and left with Ms Ewin heading for Southern Cross station. When they reached Southern Cross, each went to their respective platforms. Shortly thereafter, while Ms Ewin was waiting for her train on her platform, Mr Vergara appeared saying that he had missed his train. He told her that he couldn’t balance the consolidations and needed to speak with her about that. Ms Ewin said that she had 20 minutes until her next train and that there was a coffee shop at the top of the station and suggested that they go there. The coffee shop was closed and Mr Vergara suggested going to a bar across the road called “Vibes”. Ms Ewin agreed. Ms Ewin deposed that Mr Vergara purchased two beers and started talking to her about office politics. He told her that there was not enough socialising in the office and that she worked too hard. He said that Mr Newton didn’t appreciate her. Mr Vergara then said that “we should go out dancing and let our hair down”. Ms Ewin rejected the suggestion that they would be going out dancing.
149 Ms Ewin deposed that before they left, Mr Vergara tried to kiss her. No further detail was given about that in Ms Ewin’s evidence. Nor was any evidence given as to Ms Ewin’s reaction.
150 Ms Ewin stated that she then left the bar and Mr Vergara followed her. When they got to the escalators at Southern Cross, Mr Vergara said that they should do that again sometime. Ms Ewin then went to her platform and caught the train that she had been initially waiting for. Her evidence was that about 20 minutes had been taken up by the events I have just recounted.
151 Ms Ewin gave an account of the events of the evening of 12 May in her statement to police. Her account is consistent with that given in her evidence-in-chief other than for two matters. First, her police statement makes no mention of any intended visit to the coffee shop. She stated to police that Mr Vergara suggested they get a drink and that she agreed. In the account given by Ms Ewin to Prof Dennerstein and recorded in Prof Dennerstein’s report, Ms Ewin referred to her desire to visit the coffee shop. In cross-examination she said that both of her accounts to the police and to Prof Dennerstein were consistent. She was not pressed as to any inconsistency. She said in cross-examination that it was not the case that she always knew she and Mr Vergara were going for a drink.
152 The second inconsistency between the evidence given by Ms Ewin and her statement to police is that there is no mention in the police statement of any attempt made by Mr Vergara to kiss her at the bar or at all. There is also no mention in Prof Dennerstein’s report of any attempt made by Mr Vergara to kiss Ms Ewin.
153 A further inconsistency arose between the evidence Ms Ewin gave in chief as to the number of beers that were purchased by Mr Vergara at the bar and the later evidence that she gave. In her evidence-in-chief she said that Mr Vergara purchased two beers. Later in relation to events which I will shortly recount which occurred the next day, Ms Ewin said that she was of the view that she owed Mr Vergara two beers. That evidence suggests that four beers had been purchased on the prior evening. In her rebuttal evidence in response to Mr Vergara’s evidence that each of them had purchased two beers, Ms Ewin responded that four beers were purchased by Mr Vergara on 12 May 2009 and that by the time they left she had consumed less than one.
154 Mr Vergara’s evidence as to the events of 12 May 2009 was largely set out in his witness statement. In that statement he claimed that at various times throughout the day Ms Ewin expressed criticism of Mr Newton and said that she and Mr Vergara were going out for drinks. Mr Vergara stated that her complaints about Mr Newton, her antics, her demeanour and tone of voice suggested to him that it would be difficult for him to decline her invitation for a drink. Mr Vergara deposed that in the early afternoon he told Ms Ewin that he could not have drinks with her that evening and he needed to go home. She responded by telling him that he could do whatever he wanted to do and that he could make his own work choices. Mr Vergara interpreted these comments as suggesting that his role as a temporary contractor was in jeopardy.
155 After some discussion with Ms Ewin about accounting issues and complaints by Ms Ewin about the work effort of various contractors, Mr Vergara deposed that he was made to feel that he needed to put in significantly more hours to keep his job. His evidence was that he stayed quite late that evening until approximately 10 pm. He said that as he began to shut down his computer and pack his belongings Ms Ewin started doing the same. She then asked if it was ok for her to walk to the train station with him and he replied that that would not be a problem. He deposed that when they arrived at Southern Cross, Ms Ewin said that it would have been nice to have had a few drinks to unwind but she could understand that he needed to get home to help out with his children. She then realised the time and said that surely his children would be in bed by now. Mr Vergara replied that they are in bed but that he needed to get home anyway. They said goodbye and went to their separate platforms.
156 Mr Vergara deposed that as he headed to his platform he felt that he was doing something wrong by not agreeing to go for drinks with Ms Ewin. He became fearful and convinced himself that in order to keep his job he should go back and agree to Ms Ewin’s repeated requests to join her for drinks. Accordingly, he went to Ms Ewin’s platform and told her he had missed his train and suggested that they have a quick drink. Ms Ewin was most pleased to see him and said that she knew he would eventually “come round”.
157 They proceeded to a pub near Southern Cross. Mr Vergara said that at the pub they spoke about a lot of things. Ms Ewin was most interested to learn of his cultural background and asked him if he liked Latin music. When he replied that he liked everything Latin, Ms Ewin asked if he would take her out to a Latin bar and teach her Latin dancing. He said that Ms Ewin made comments to the effect that they should “let our hair down and go dancing”. He claims that he replied that unfortunately he could not dance. Ms Ewin expressed disappointment. The conversation then turned to her travelling around Europe many years earlier. Mr Vergara claims she reminisced about how much fun she had as a carefree and single young female while travelling.
158 Mr Vergara’s evidence given in his witness statement concluded with the following statement:
We had 4 beers each (2 rounds purchased by each) and as we finished our last beer the Applicant leant across and kissed me on the cheek and thanked me for being such a good listener as it helped her unwind and de-stress, we then went back to the train station to go our separate ways. At no time did I encourage her to touch or kiss me; this action was purely driven by her own actions.
159 The evidence given by Mr Vergara which I have recounted was not put to Ms Ewin. In her rebuttal evidence Ms Ewin denied most of the evidence given by Mr Vergara including all of the evidence given by him which was inconsistent with the account of the same events she had given. I have dealt already with her response to the number of beers that were purchased. Contrary to Mr Vergara’s evidence that they left work at about 10 pm, Ms Ewin’s evidence was that they left at about 8.45 pm.
160 In cross-examination, Mr Vergara acknowledged that he had gone down to Ms Ewin’s platform and that he invited Ms Ewin for a drink. He denied that he had suggested they have a coffee and that they looked for a café. He was taken to his record of interview with police. Mr Vergara told police that he could not recall at all the evening of 12 May 2009, although he did go on to say that on a Tuesday and a Wednesday he and Ms Ewin stopped at a bar and had drinks before catching the train. His recollection of what transpired on the evening of 12 May was tested in cross-examination, largely by reference to the drinking of beer and his claim that he and Ms Ewin had four beers each. Mr Vergara could not recall who had purchased the first round of drinks. He could not say whether it had taken him half an hour or two hours to drinks all four beers. He confirmed that he had not told police that Ms Ewin had suggested they should go out dancing. Mr Vergara was not cross-examined in relation to Ms Ewin’s claim that he had tried to kiss her before they left the bar.
161 I accept the main elements of Ms Ewin’s account of what transpired on the evening of 12 May, other than for her evidence that Mr Vergara tried to kiss her. The manner in which that evidence was given, including the lack of detail about the attempt and as to her reaction, together with the absence of any such claim in Ms Ewin’s prior statements to police or in Prof Dennerstein’s report, suggest to me that Ms Ewin was either mistaken or that she exaggerated her account of events. The failure of Ms Ewin’s Counsel to cross-examine Mr Vergara as to this claim supports my finding that it did not happen. In any event, I would not have made a finding that Mr Vergara tried to kiss Ms Ewin on 12 May as no such allegation was made in Ms Ewin’s pleaded case.
162 I reject Mr Vergara’s account insofar as it is inconsistent with Ms Ewin’s account. The comprehensive recall of events which Mr Vergara’s evidence-in-chief suggested is inconsistent with Mr Vergara’s statement to police and inconsistent with his evidence in cross-examination. The fact that none of the claims raised against Ms Ewin were raised with the police is significant for the same reasons I have already recorded. I regard Mr Vergara’s account as a further instance of his attempt to untruthfully cast Ms Ewin in the role of predator and himself in the role of the unwilling victim.
163 Both Ms Ewin and Mr Vergara accepted that a suggestion was made and rejected that they should go out dancing and let their hair down. I accept that such a suggestion was made and was rejected. What is in contest is whether it was Mr Vergara or Ms Ewin who made the suggestion.
164 I am satisfied that it was Mr Vergara who made the suggestion and Ms Ewin who rejected it. Whilst cautious as to its reliability, I prefer Ms Ewin’s evidence to that of Mr Vergara. My finding is further supported by the following matters. Mr Vergara initiated the drinks and was more likely to be the person who desired that the evening should continue elsewhere. Mr Vergara, as I have already found, initiated or tried to initiate or encourage personal contact with Ms Ewin including when she was home ill, on 9 May in the office and as a jogging partner. The findings I have made (including those later recorded) show that it was Mr Vergara who sought to initiate social contact with Ms Ewin and that Mr Vergara was interested in having sexual relations with Ms Ewin. It is likely that Mr Vergara suggested that he and Ms Ewin go out dancing and let their hair down.
165 I find that the pleaded allegation made by Ms Ewin that Mr Vergara suggested that he and Ms Ewin should go out dancing and let their hair down, to be proven.
166 It is this incident which raised the concern earlier referred to as to whether certain conduct of Mr Vergara was capable of constituting a “sexual advance”, “request for a sexual favour” or “conduct of a sexual nature”. An invitation to go out dancing may or may not involve a sexual connotation. Much will depend upon the circumstances in which the invitation is made. The assessment as to whether an invitation is a “sexual advance” or “conduct of sexual nature” is to be made objectively. A subjective approach would raise a difficult issue as to whose subjective view is to be considered and would allow for subjective unreasonableness to intrude.
167 As Mansfield J said at [294] of Poniatowska, the content of the term “of a sexual nature” must take its meaning from its context. That context includes the conduct dealt with by s 28A(1)(a) (sexual advances and requests for sexual favours), but section 28A(1)(b) (other conduct of a sexual nature) is intended to broaden the conduct which constitutes sexual harassment beyond the scope of s 28A(1)(a).
168 The circumstances in which Mr Vergara’s suggestion to go dancing was made do not suggest that it should be characterised as a sexual advance or other conduct of a sexual nature. An invitation to socialise may be objectively regarded as intended to facilitate the opportunity for a sexual advance to be made, but that in itself, is not sufficient to meet the statutory description. The level of intimacy attached to the conduct is relevant (Kraus at [55]) but, in my view, was insufficient to attract liability on this occasion.
169 Furthermore, Ms Ewin’s rejection of the invitation was not of itself evidence that the advance was unwelcome. I would not in any event have been satisfied that a reasonable person would have anticipated that Ms Ewin would be offended, humiliated or intimidated.
170 I am not satisfied that Mr Vergara’s conduct on 12 May constituted sexual harassment. Nevertheless, Mr Vergara’s enthusiasm for social contact with Ms Ewin and Ms Ewin’s rejection of the invitation made to her is of some significance to her other claims.
171 Three sets of events were relied upon by Ms Ewin as instances of sexual harassment which she alleged occurred on 13 May. The first took place in the LLA office. The second occurred at the Waterside Hotel and the third took place between the Waterside Hotel and Southern Cross.
172 Ms Ewin deposed that during the course of Wednesday 13 May, whilst at work, Mr Vergara asked her what she was going to do “to keep Claudio happy while he sat in the corner and did journals”. She stated that those comments were made whilst Mr Lafferty was not in the room. Mr Vergara made a reference to the previous evening and said that he had fun and that she “owed” him. In relation to the comment that she owed him, Ms Ewin understood Mr Vergara to be referring to his purchase of two beers on the previous evening. Ms Ewin was asked whether any comments were made by Mr Vergara about his future with LLA to which she responded that Mr Vergara said that she should keep Claudio happy otherwise he might cease his contract early and leave her with unfinished work.
173 On that evening, Mr Lafferty left the office between 6:00 pm and 6:30 pm and Ms Ewin was left alone with Mr Vergara. Ms Ewin’s evidence suggests that at about 8.30 pm Mr Vergara had still not completed a consolidation and reporting task given to him but packed up his desk and said he would go home and sleep on it. He then shut down his computer and made his way out into the hallway. She presumed that he had gone to the bathroom. Mr Vergara then returned. He switched the lights off in the alcove area outside of her office. Ms Ewin deposed that Mr Vergara then switched the lights off in her office, plunging it into darkness whilst she was still working. In response she said, “Turn the fucking lights on”. Mr Vergara laughed and approached her desk. He came behind her desk and tried to touch her hand to turn off her computer saying that they should finish for the evening. He then walked away from her desk. Mr Vergara said he just wanted to see the city skyline at night from behind Ms Ewin’s desk and chair.
174 When asked to recount those events by her counsel, Ms Ewin said that Mr Vergara had gone behind Mr Lafferty’s desk, behind her desk and touched her hand in the dark. Mr Vergara touched her right hand which was placed on the mouse of her computer. She said that Mr Vergara tried to move the mouse to turn off her computer. She responded by pushing her chair back and saying, “Turn the fucking lights on”.
175 After commenting that he just wanted to see the view, Mr Vergara then walked over to turn the lights on and said, “I’ll only turn the lights on if you agree to come and talk to me about something. I want to tell you something”. Ms Ewin said her response to Mr Vergara was, “Fine, we will go to the hotel across the road”. She deposed that she was frightened and angry and frustrated and wanted to get out of there to somewhere safe where there were other people. Her evidence was that she suggested going to the Waterside Hotel and did so because there was a teller machine there and she wanted to take out money to give to Mr Vergara to stop him saying to her, “You owe me”.
176 When they came out of the lifts, Mr Vergara suggested that they go to a bar in Highlander Lane. Ms Ewin refused. She deposed that they walked to the Waterside Hotel [a short distance away in Flinders Street] where she says she ordered two beers for Mr Vergara. She then went to the teller machine to get money so that Mr Vergara would not say, “You owe me”. When she came back from the teller machine, Mr Vergara had paid for four beers, two for each of them and said, “I need to speak to you about something”. She tried to give him some money but he would not take the money.
177 Initially they had a general conversation about the weather and other topics which Ms Ewin described as benign. Mr Vergara then said that he had something to tell her where upon he said, “I want to have an affair with you. I want to fuck you over your desk and chair till you scream”. Mr Vergara then told her that he had a big dick and that she couldn’t refuse him. He said to her that it was “primal” and that she should just go with it. He said that they should just go back to the office and that she should fuck him at the office. He told her that it didn’t make sense, that it’s primal and that she should just go with it. He said that everyone is having an affair and that he wants a piece of the action. He told her he fucks his wife three days a week and said that it was all care, no responsibility and he was just going to play the field.
178 Ms Ewin also deposed that Mr Vergara told her that he fantasised about fucking her over her desk until she screamed. Mr Vergara asked her if she knew why he went running three times a week. She responded that she didn’t know but thought that like Mr Lafferty, Mr Vergara went to the gym to break up the day as they were stuck in a small office. Mr Vergara then said that was not the reason and stated, “I go running three times a week because I am sitting there with a hard-on, thinking about the things I am going to do to you over your desk”. Mr Vergara also said that he masturbated at home and in the office shower thinking about what he could do to her and how he would just fuck her until she screamed. Mr Vergara also told her that when he had asked her, “What are you going to do to make Claudio happy?” what he meant was that he wanted to fuck her in the office until she screamed.
179 Mr Vergara said that now that he had laid his cards on the table, “We should just go back to the office and fuck over [your] desk”. When Mr Vergara said “its primal” his telephone rang and he looked at it and said that it was his wife calling and that they would need to go back to the office as soon as possible so that his wife could not tell how many hours he had not been home.
180 Ms Ewin was asked what responses she could recall that she had made to these various comments. She said that she was shocked that she felt like she had been winded. She deposed that she told Mr Vergara that she would not be having an affair with him, that she didn’t think of him like that, that she was married and had her own back yard and home. She told Mr Vergara that whatever his problems were, she thought that it was all about him and where he was in his life and that whatever his business might be at home with his wife he should seek counselling or something and that it wasn’t her problem it was his.
181 When asked whether she could recall any response made by Mr Vergara to these statements, Ms Ewin deposed that Mr Vergara said that he just wanted to fuck her until she screamed and that he had a big dick and that she couldn’t refuse him. She deposed that she had not done anything which had prompted Mr Vergara’s comments. She said that she asked him what on earth she had done to make him say these things to her and that is when he replied that “it’s primal”.
182 When she rejected his advances Ms Ewin claimed that Mr Vergara pouted, looked sour faced and said, “Oh well, that’s just another job I fucked up”.
183 At that point Mr Vergara said he should go. Mr Vergara then left with his bag. Ms Ewin waited until he had gone out of the hotel in order to avoid walking to the train station with him. Ms Ewin deposed that she did not finish even one of the beers Mr Vergara had purchased for her. She just held it in her hand listening. Her evidence was that she had drunk a quarter of a bottle.
184 By reference to the time shown on the teller machine receipt which Ms Ewin had kept and the time of the 9.42 pm train Ms Ewin later caught, Ms Ewin’s evidence suggested that the conversation at the Waterside Hotel took about 30 minutes.
185 Ms Ewin deposed that as she left Mr Vergara was waiting at the door of the hotel and walked behind her as she walked up King Street towards Southern Cross. As she walked up King Street and whilst outside the VCAT Building, Mr Vergara said something to her. She turned and he grabbed her by the lapel of her jacket and tried to kiss her. Ms Ewin deposed that she shoved Mr Vergara away and said, “Don’t ever touch me again”. She said that Mr Vergara mumbled something about his wife being sick for the last two weeks and that he hadn’t had enough sex and that he needed sex. When asked how she felt following this incident, Ms Ewin deposed that she was quite frightened and shaken and just totally bewildered as to why Mr Vergara would say those things to her. She said that she understood what Mr Vergara was inferring when he said, “You owe me”. Asked whether she had experienced any other reactions to the conduct, Ms Ewin said that she was terrified and that she just wanted to get home and that Mr Vergara made her feel sick.
186 Once she pushed Mr Vergara away, he continued to walk behind her. They walked up King Street and into Collins Street and straight into Southern Cross. As she went up the escalator, Mr Vergara said, “I’d like to talk to you about this again sometime”. Ms Ewin went straight to her platform without responding.
187 Ms Ewin was cross-examined about the evidence she gave of the events of 13 May. Largely, she was asked to confirm the evidence that she previously gave and she did that. Essentially, the line of inquiry taken up with her was directed to Mr Vergara’s contention that if what she claims had occurred did in fact occur, Ms Ewin would have taken steps to address it. I will deal with that issue later. In addition, Ms Ewin was cross-examined about her evidence as to why she chose to go from the office to the hotel. She stated that she went to the hotel because there was a teller machine there and she wanted to give Mr Vergara money to stop him saying that she owed him. Her evidence was that the closest teller machine she was aware of was in the hotel. She wanted to go there because it was a public place where she knew other people would be. When asked how much she thought Mr Vergara was owed, she stated that he had purchased four beers at the Vibes Hotel (on the previous day) and that she considered she owed Mr Vergara for two beers.
188 Ms Ewin made reference to events on Wednesday 13 May in the Nurse-On-Call conversation on Sunday 17 May 2009. Relevantly, she said:
Um, on Wednesday he just said, “I’m totally in love with you, I need, I need to have you physically” and I said, “I don’t think that’s appropriate” um, “you’ve got a wife and family and you work for me as a temporary worker”.
Um, and that was the end of the conversation and he tried to kiss me and I said, “that’s not appropriate” and I didn’t go and report it anywhere but then they had work drinks on the Friday night…
189 In cross-examination, Ms Ewin was asked whether those comments were factually correct. She answered as follows:
The last paragraph on page 1 [the first paragraph set out above] is a summary of what the entire previous week, in my mind, added to which was, he was in love with me. And, the word, “Physically,” it means sexual intercourse and that one sentence also includes, “I don’t think it’s appropriate.” And that is what I said. “You’ve got a wife and family and you report to me. You work for me as a temporary worker.” All of those are factually correct. Instead of saying, “I want to fuck you til you scream,” I’ve said – he is –“I’m totally in love with you.” I have made a short sentence in trying to understand your behaviour, as indicated on page 7, if that helps.
190 Ms Ewin was then asked to comment on the second paragraph from the Nurse-On-Call conversation set out above. She said:
That is correct. At the end of the conversations as walking up King Street, I was grabbed and tried to kiss me. That is correct. And, it is correct, I didn’t report it formally…
191 Ms Ewin gave an account of events on 13 May in her statement to police. Her description of events and conversations is largely consistent with the evidence that she gave to the Court. Insofar as there are differences of any significance, the differences concern the following matters which, for the most part, were not the subject of specific evidence from Ms Ewin in the testimony she gave in Court:
Ms Ewin stated to police that before she and Mr Vergara left the office, Mr Vergara suggested that she go to the pub with him as she owed him a round of beers.
Ms Ewin told police that the incident where Mr Vergara turned off the office lights freaked her out and that for the first time she thought that she was not safe in the office with Mr Vergara.
Ms Ewin told police that in declining Mr Vergara’s suggestion to go to the bar directly opposite the office she said she’s going to the pub across the road to get cash from the ATM “for my train ticket”.
Ms Ewin stated to police that she left the Waterside Hotel at the same time as Mr Vergara and that Mr Vergara grabbed her and tried to kiss her as they walked up King Street together.
192 Mr Vergara gave extensive evidence about the events of 13 May through the witness statement which he tendered. He said that on the morning of 13 May it was business as usual in the office until Mr Lafferty left for an hour or so over lunch. With Mr Lafferty out of the office, Mr Vergara deposed that Ms Ewin referred to the previous evening and asked him if he enjoyed himself to which he responded that having midweek drinks was not really a good idea. Ms Ewin then reminded him of her work ethic, “We work hard, so we play harder”. Later in the afternoon, again when Mr Lafferty was out of the office, Ms Ewin pressed him in relation to his work in a stern and authoritative manner which he interpreted as suggesting that his temporary contract would be terminated if there was a lack of progress. To that he replied that he would be staying back to further progress his work.
193 Mr Vergara deposed that after Mr Lafferty left for the day sometime around 6 pm, Ms Ewin asked if he would join her for drinks again. Mr Vergara deposed that by this time he had come to the realisation that Ms Ewin could not be refused and agreed to have a quick drink with her. He and Ms Ewin continued to work until about 9 pm when he started to pack up his belongings. He suggested that drinks be left to another occasion at which point Ms Ewin stated that she was finished and began shutting down her computer and packing up her work. Mr Vergara stood at the door whilst Ms Ewin completed her packing up and as she started making her way towards the door he switched off the lights some two or three seconds before she got to the door. Ms Ewin then said, “Who’s in a hurry now?” Ms Ewin locked the door and they headed across the road to the pub [the Waterside Hotel].
194 Mr Vergara deposed that at the pub they had four drinks each. He said that two rounds were purchased by each of himself and Ms Ewin. When they arrived, Ms Ewin ordered the first round of drinks and realised she had no cash so she went over to the ATM. He said they spoke about a lot of things including light office conversation and their travel experiences. Ms Ewin then started getting a bit personal and told him about a range of matters including legal disputes between herself and her husband; that her husband was older and relied upon Viagra; that after six months of marriage to her husband it was taking its toll; that Ms Ewin was one of five siblings; that she was trying to cope with her role as Group Financial Controller; that Mr Newton had an autocratic management style; that Ms Ewin despised Mr Newton; and that Mr Newton’s wife struggled to cope with his antics.
195 Mr Vergara claims that after setting out these various personal frustrations, Ms Ewin then directly asked him if he would be interested in her role as Group Financial Controller if she left LLA. He responded that he would seriously consider it if it was available. Mr Vergara claimed that his reply made Ms Ewin annoyed and agitated. He deposed that Ms Ewin reminded him that she was in a position to hire and fire and gloated about how she had dealt with his predecessors including Mark Young. Mr Vergara said that these comments made him very concerned and paranoid about his temporary contract coming to an abrupt end in light of the Global Financial Crisis.
196 Mr Vergara and Ms Ewin finished their drinks and walked together to Southern Cross to catch their respective trains home.
197 The account given by Mr Vergara of the events of 13 May were not put to Ms Ewin in cross-examination. In her rebuttal evidence, other than for some minor matters in relation to which there was no conflict in the evidence, Ms Ewin denied the truthfulness of the evidence given by Mr Vergara.
198 In his statement to police, Mr Vergara denied that he had made comments to Ms Ewin asking how she was going to “keep Claudio happy”. He accepted that a bit of banter and joking around occurred but denied any sexual innuendo. He denied that he put any sexual connotations in any conversations that he had with Ms Ewin. Mr Vergara told police that he could not confirm or deny whether he told Ms Ewin that she owed him a round of beers. In cross-examination, Mr Vergara deposed that he did not recall saying that Ms Ewin “owed” him. When pressed, he said he did not think he said it and when pressed again, he said it was not possible that he said that. He added that they both purchased drinks the previous evening.
199 Mr Vergara denied to police that he had switched off the lights after returning from the bathroom. However in cross-examination he accepted that he had done that.
200 He told police that he did not recall Ms Ewin screaming at him to “turn the fuckin lights on”. He said there was no disagreement with Ms Ewin about the lights. He told police that there was never any argument or confrontation with Ms Ewin that he could recall.
201 He accepted in his interview with police that he and Ms Ewin went out for a drink but said that he did not recall “how it unfolded”. Mr Vergara said that it could have been he who suggested a drink or it could have been Ms Ewin. Those statements are starkly inconsistent with the apparently comprehensive recollection evident from the evidence given in chief by Mr Vergara as to the conversations and events on 13 May.
202 In his interview with police, Mr Vergara said he could not recall going behind Ms Ewin’s desk and trying to turn her computer off by covering her hand with his whilst her hand was over her computer mouse. In cross-examination he denied this allegation.
203 Mr Vergara was also questioned by police as to the conversation which occurred at the Waterside Hotel. In substance, each of the elements of the conversation which Ms Ewin deposed to in her evidence was put to Mr Vergara and his response was sought. Mr Vergara did not accept any of the allegations put to him. On some occasions he said he did not recall. On other occasions he denied the conversation. He said he was shocked and horrified that Ms Ewin was making allegations that he said “its primal” and that he fantasised about fucking Ms Ewin till she screamed. He said he had no idea where the comments alleged against him were coming from. He suggested to police that Ms Ewin may need a psychologist. He observed that if those things had happened, Ms Ewin would have sacked him. Mr Vergara denied ever having a conversation with Ms Ewin about having an affair with her. He also denied that he grabbed Ms Ewin while walking up King Street and tried to kiss her.
204 Mr Vergara’s denials to police as to what he had said to Ms Ewin at the Waterside Hotel and his reaction of shock and surprise at many of the comments alleged, is inconsistent with his reaction to some of the same accusations when they were raised with him by Ms Ewin during the two pretext conversations which occurred several months prior to the police interview.
205 In the first pretext conversation, Ms Ewin told Mr Vergara that she was pregnant. She sought to illicit information from Mr Vergara by stating that she had no recollection of what had happened and needed to know whether they had unprotected sex on Friday 15 May 2009. She intimated to Mr Vergara that she did not know whether she was pregnant to him and that she needed to know in order to decide whether or not to terminate the pregnancy.
206 After a number of questions from Ms Ewin, Mr Vergara said in the first pretext conversation that they had “messed around a bit” at the office. That initial response led to the following exchange:
E: But does, does that involve…semen? That’s what I’m trying to understand. Like, is messing around, semen? Or was the, when you said, you know, “I think you’d like to fuck me ‘til I scream”, did you? That, that’s what I need to know, because that’s gonna change –
V: Well that was, ah, that was on a totally different night
207 Mr Vergara was asked in cross-examination whether the answer given by him set out above was truthful. Mr Vergara was evasive and changed his answer to that question several times. First he said it was the answer that he gave. Then he said it was a truthful answer. Then he said that what he meant was that the comment [I would like to fuck you till you scream] was made on another night. When asked again if the answer was truthful, Mr Vergara reverted to saying that it was the answer he gave. On being pressed further, Mr Vergara then said that it was not the correct answer. When asked whether he had therefore told Ms Ewin a lie, he initially said that he had been confused. He said his confusion arose because Ms Ewin had said she was pregnant and because he was being tricked and deceived [because of the pretext conversation]. Mr Vergara then conceded that he had told Ms Ewin a lie. At that point he sought to explain his lie on the basis that Ms Ewin was pregnant and he was trying to assist her. When it was suggested to him that he was content to tell a lie, he accused counsel of taking things “out of context” – a response he used on many occasions in his cross-examination. He asserted in several further answers that what he meant to say in giving the answer to Ms Ewin was that he and Ms Ewin had spoken about sex on another night. He sought to explain the difference between what he actually said and what he meant by saying that he was “under trickery”. When it was pointed out to him that he could not have known at the time of the conversation that he was being tricked [by the pretext nature of the conversation], he reverted to relying upon being startled by Ms Ewin’s advice that she was pregnant.
208 Mr Vergara was entirely unconvincing. The manner in which he gave evidence on this topic was not isolated. It was illustrative of Mr Vergara’s preparedness to twist and turn and say whatever he thought might assist his case.
209 I find that the answer he gave in the pretext conversation was given to correct Ms Ewin’s suggestion that on the night that they were “messing around” [15 May] he had said that he would like to fuck Ms Ewin till she screamed. Mr Vergara corrected Ms Ewin by saying that the comment was made on a “different night”. In doing so he acknowledged that he had told Ms Ewin that he would like to fuck her till she screamed. I further find that he gave that answer because that was in fact what he had said to Ms Ewin on the “different night”. I accept Ms Ewin’s evidence that the comment was made at the Waterside Hotel on 13 May.
210 There were similar inconsistencies and implied acknowledgements made by Mr Vergara in the second pretext conversation.
211 That conversation, held some sixteen days after the first, began with Ms Ewin informing Mr Vergara that her pregnancy “has now been fixed”. Ms Ewin then said that she wanted to understand what had happened including how she ended up at the office [on 15 May] so that she could put it behind her. Ms Ewin’s tone was much more aggressive than in the first pretext conversation and the second conversation became confrontational.
212 Insofar as the events of 12 and 13 May are concerned, the following 4 exchanges in the second pretext conversation are relevant:
(i) E: No I’m asking you to describe to me how, how can I consent when I’ve said to you “no I don’t want to go out dancing with you” when you come find me at the train station on a Tuesday and then on a Wednesday you determine you’re going to fuck me over the chair and let’s go back to the office and I say “no”, and then you try and kiss me in the street when I say “no”, and then you tell me that you, you, have to masturbate to get over it, like I just, I don’t understand how you got to the idea if I’ve said “no”, “no”, “no”, “no”, that this would be consensual and I would ask you that –
V: I don’t know, I’ve got absolutely no idea where you’re headed with your, with your suggestions at all –
E: I think you know they’re not suggestions –
V: I think I don’t know where you’re headed, but you certainly don’t seem to be headed down the right path, um –
E: I just want to know how –
V: Hey?
E: I just want to know how –
V: How what? How, how, how, you stuck a knife in my back?
(ii) E: More on the Friday night how the hell I end up in the office with you. That’s what I want to understand. Don’t worry about your professionalism. I’ve got plenty of people who have got ideas about that but, you know you’re telling me that you have to masturbate to get over it, you want to fuck me because it’s primal and that’s a great idea –
V: I, I don’t –
E: I just, I don’t understand it.
V: I don’t know what you’re talking about, Jemma. You are certainly getting yourself confused…
E: Confused?
V: You seem to have, you seem to get, you seem to be getting yourself into a big mess. I don’t think you really know what you’re actually talking about.
(iii) E: You’re the one that said oh it’s primal. I’d like to fuck you over the chair –
V: I’m really busy at the moment so I can’t really entertain –
E: Well perhaps you can stand up and take responsibility for the fucking mess you left my life in.
V: As I’ve said, I’ve got no time for this um if you’re, if you’re really interested perhaps we can talk another time and perhaps have a bit of a catch up over a coffee or something because over the phone, I’m really in the middle of something now, I can’t actually entertain this discussion…sorry
(iv) E: Why don’t you have a look at what you’ve done to me? Why don’t you take a hard look at that? You’ve told me that you didn’t have sex with your wife for a couple of weeks and you try and kiss me in the street. Like, I just, I don’t understand how you can get from being the person in the corner quietly doing journals to someone in about three days that’s aggressive and comes out with oh well that’s just what happened.
V: Aggressive?
E: Mmm.
V: What do you mean by aggressive?
E: What are you gonna do to keep Claudio happy, you try to keep Mark happy, what are you going to do to keep me happy? I’m only here til 30 September.
V: I don’t know what you’re talking about aggressive. Are you calling me aggressive?
E: Yeah, sexually aggressive. Yeah.
V: Sexually aggressive?
E : Mmm.
V: I don’t know what you’re talking about sexually aggressive. That’s a new -
E: So, so you, so, you don’t reckon you said to me I need to masturbate and I need to run to save me sitting here with a hard on in the office with you. You don’t recall that conversation either?
V: Hold on a minute, you want me to start remembering some of the lines that you’ve used about, about not just, not directly at me but about other people?
E: I don’t think so mate, I don’t think so, you know what you said to me. You said “it’s primal, I can’t explain it, I just want to fuck you over the desk” and I end up, my life in an utter wreck because of your decisions.
V: Oh don’t, don’t, don’t start to point your unhappiness any anyone else –
E: Oh
V: If you’re unhappy about, if you’re unhappy with your life or your relationships –
E: No I’m unhappy with you making some decisions to make my life the way that it went.
V: I did nothing to you.
213 Each of those exchanges was put to Mr Vergara in cross-examination. Mr Vergara agreed that despite having the opportunity to do so, he had not denied in those exchanges the comments that Ms Ewin put to him as statements he had previously made to her. Mr Vergara did however deny having made the comments alleged against him. The explanation given by Mr Vergara as to his failure to specifically deny the allegations made to him in those exchanges was that despite Ms Ewin’s lies [contained in those exchanges], he had not corrected Ms Ewin because he was not “a confrontational person”. He said that he “did not challenge people”.
214 I do not accept Mr Vergara’s explanation. Nothing that I saw of Mr Vergara’s evidence suggests to me that he is not a confrontational person. His preparedness to be confrontational is evident from the very exchanges in question. In the first exchange, Mr Vergara accused Ms Ewin of sticking a knife in his back. To the accusation in the last exchange that he had said that he needed to masturbate and needed to jog so that he did not sit in the office with Ms Ewin with a hard-on, Mr Vergara responded confrontationally by suggesting that Ms Ewin had made remarks of a similar character about other people. That exchange is most telling because in it, Ms Ewin specifically challenged Mr Vergara to deny a recollection of the conversation. He did not do so but, as he accepted in his cross-examination, he turned the conversation onto Ms Ewin.
215 Mr Vergara’s credibility in relation to the conversations that he and Ms Ewin had was further eroded by what I consider to be the untruthful evidence that he gave in cross-examination that when Mark Lafferty left the room the conversation between Ms Ewin and Mr Vergara changed and Ms Ewin would become a “sexual predator” in her conversations with him. At one point in Mr Vergara’s record of interview, he was asked whether a particular conversation occurred. He answered that all conversations were held in an office environment where three people sat and that Mr Lafferty was the third person. It was put to him that it was alleged against him that the particular conversation occurred when only he and Ms Ewin were in the room. The following exchange then occurred:
Police Officer: Would the conversation change when Mark was in the room?
Mr Vergara: Conversation was no difference when Mark was in the room. Conversation was always the same.
216 Mr Vergara was taken to that exchange in cross-examination in the context of being questioned about his evidence that Ms Ewin would become a sexual predator when Mr Lafferty left the room. It was put to him that if that were true he had lied to police. He denied that his response was a lie. He said that “in the context” of the conversation the answer was correct. Over a long exchange in cross-examination, Mr Vergara continued to insist that there was no inconsistency between the evidence he had given and what he had told police because “the context” was different. I appreciate that in his answer to police, Mr Vergara may have had in mind that the subject of the question was limited to whether his conversation changed when Mr Lafferty left the room. What is nevertheless surprising about Mr Vergara’s answer to police is that if it was true that Ms Ewin’s conversation changed when Mr Lafferty left the room, he did not say so in response to this obvious opportunity to do so. His failure to take that opportunity supports my view that his evidence was a fabrication.
217 I reject the account of events on 13 May given by Mr Vergara insofar as Mr Vergara’s account is inconsistent with that given by Ms Ewin. In particular, I regard Mr Vergara’s claims that he was pressured into going for a drink with Ms Ewin and that Ms Ewin spoke to him about personal issues such as her husband and their marriage, to be part of Mr Vergara’s false portrayal of himself as a victim of Ms Ewin’s sexually predatory behaviour.
218 The fallacy of that portrayal and that the reverse was in fact the truth, was made manifestly clear by Mr Vergara’s acknowledgment in the first pretext call that he told Ms Ewin that he would like to fuck her till she screamed. That evidence demonstrates, out of Mr Vergara’s own mouth, that Mr Vergara was sexually interested in Ms Ewin, that he propositioned her to have sexual intercourse with him and that he was prepared to and did use vulgar and explicit language to do so.
219 The evidence from the second pretext conversation which I have set out above was confirmatory of those matters as were the inconsistencies between the evidence given by Mr Vergara and his statements to police. I regard as particularly significant the evidence in the latter part of the fourth exchange of the second pretext call set out above, in which Mr Vergara was specifically challenged by Ms Ewin to deny that he told her about why he needed to masturbate and that he had said that he wanted to fuck her over her desk. Rather than denying those accusations, Mr Vergara changed the subject by questioning Ms Ewin’s motives and past behaviour.
220 The evidence in the pretext conversations verify the evidence given by Ms Ewin of the vulgar and obscene way in which she was sexually propositioned by Mr Vergara. It dispelled the concern I may otherwise have had that the evidence given by Ms Ewin may have been exaggerated. In coming to the conclusions that I have reached, I have taken into account the evidence that I later record and the observations I later make about the fact that Ms Ewin made no complaint about Mr Vergara’s behaviour or otherwise sought to take action against him until 19 May 2009.
221 To the extent that Ms Ewin made accusations in her evidence which travelled beyond the scope of the allegations pleaded against Mr Vergara, I have made no findings against Mr Vergara.
222 By reference to the allegations made in Ms Ewin’s statement of claim, I find the following allegations to be proven:
(i) During the course of 13 May 2009 at the LLA office, Mr Vergara said words to the following effect to Ms Ewin:
(a) What are you going to do to keep Claudio happy?
(ii) That during the evening of 13 May 2009 at the LLA office, Mr Vergara turned the office lights off, walked behind Ms Ewin while she was sitting at her desk and touched Ms Ewin’s hand whilst attempting to turn off her computer. Mr Vergara said to Ms Ewin that he would only turn the lights on if she agreed to come and talk to him about something. As a result of being frightened and wanting to go to a safer place, Ms Ewin agreed to go with Mr Vergara to a hotel across the road from the LLA office (the Waterside Hotel).
(iii) That during the evening of 13 May 2009 at the Waterside Hotel, Mr Vergara said words to the following effect to Ms Ewin:
(a) I want to have an affair with you;
(b) I want to fuck you over your desk and chair till you scream;
(c) I go running three times a week because I have a hard-on thinking about fucking you;
(d) I masturbate for relief;
(e) it’s primal and you should go with it;
(f) when I said to you, “What are you going to do to make Claudio happy?” I meant that I wanted you to fuck me; and
(g) I have laid my cards on the table and we should go back to the office now and fuck over your desk.
(iv) That during the evening of 13 May 2009 whilst in King Street Melbourne, Mr Vergara tried to kiss Ms Ewin.
223 I further find that the conduct engaged in by Mr Vergara was unsolicited by Ms Ewin. I find that at the Waterside Hotel, Ms Ewin told Mr Vergara words to the effect that she was not sexually interested in him and would not be having a sexual affair with him. I also find that Mr Vergara’s conduct at the LLA office which I have referred to at (ii) caused Ms Ewin to be frightened and apprehensive; the conduct referred to at (iii) caused Ms Ewin to feel shocked; and the conduct referred to at (iv) caused Ms Ewin to feel frightened and shaken.
224 The conduct that I have found occurred and have recorded at (i) does not, in my view, satisfy the statutory description of sexual harassment. It was an odd and arguably innocuous comment in the context of the background circumstances then objectively known. Additionally, there was no evidence of any conduct from Ms Ewin sufficient to characterise Mr Vergara’s conduct as unwelcome.
225 The next incident (recorded at (ii)) is conduct which did contravene the SD Act. It was conduct of a sexual nature. It followed a number of earlier incidents in which Mr Vergara expressed some interest in Ms Ewin. Those expressions were apt to take on a different complexion in the light of this conduct. Ms Ewin was alone in the office with Mr Vergara late into the evening. Turning off the lights, walking behind Ms Ewin while she was seated, touching her hand and demanding (as the price for turning on the lights) that Ms Ewin agree “to come and talk to me about something”, was intimidatory behaviour which, objectively considered, would raise a reasonable apprehension in a woman in Ms Ewin’s circumstances of the likelihood of an impending sexual advance. The conduct was of a sexual nature and was unwelcomed by Ms Ewin.
226 A reasonable person having regard to those circumstances would have anticipated that Ms Ewin would be offended, humiliated or intimidated, as indeed she was. The conduct unquestionably occurred at the workplace of both Mr Vergara and Ms Ewin.
227 The third incident on 13 May (recorded at (iii)) undoubtedly involved the making of unwelcome sexual advances, unwelcome requests for sexual favours and other unwelcome conduct of a sexual nature. A reasonable person would have anticipated that Ms Ewin would be offended, humiliated or intimidated, as indeed she was.
228 The conduct occurred at the Waterside Hotel across the road from the LLA office and immediately followed the sexual harassment which I have found occurred at the office. The conduct was part of the same course of sexual harassment which began in the office. The movement from the office to the Waterside Hotel was initiated by Mr Vergara as part of his sexual harassment of Ms Ewin in the office and was acceded to by Ms Ewin in reaction to that harassment at the office, in an endeavour to move to a safer place.
229 In that respect at least, the purpose of the attendance and thus the function there carried out was to deal with the sexual harassment which began at the workplace. It makes no difference to the existence of that function that Mr Vergara’s purpose was to enlarge the sexual harassment while Ms Ewin’s purpose was to diminish it.
230 For a place at which sexual harassment occurs to satisfy the statutory definition of “workplace”, the function carried out at that place needed to be “in connection with” Mr Vergara and Ms Ewin being workplace participants. The phrase “in connection with” used in the s 28B(7) definition of “workplace” is a phrase of wide import. The words require a mere relation between one thing and another and do not necessarily require a causal relationship between the two things: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479 (Wilcox J).
231 The relation between what Mr Vergara and Ms Ewin were doing at the Waterside Hotel and each being a workplace participant is established by the fact that the sexual harassment at the LLA office was workplace based harassment and that Ms Ewin and Mr Vergara moved to the Waterside Hotel to deal with that incident of harassment. Those matters establish a sufficient connection to the workplace to render the Waterside Hotel a “workplace” for the purposes of s 28B(6) during the course of Mr Vergara’s and Ms Ewin’s attendance at that place.
232 The fourth incident which occurred on 13 May (recorded at (iv)) involving Mr Vergara trying to kiss Ms Ewin in King Street after they left the Waterside Hotel also involved the making of an unwelcome sexual advance or other unwelcome conduct of a sexual nature. That conduct also formed part of the same course of conduct which began with the sexual harassment at the LLA office earlier that same evening. Having regard, in particular, to Ms Ewin’s prior rejection of Mr Vergara’s sexual advances, a reasonable person having regard to the circumstances would have anticipated that Ms Ewin would be offended, humiliated or intimidated. In my view, the place at which the conduct occurred had a sufficient workplace nexus and satisfied the statutory definition of “workplace” for the same reasons as those that pertain to the finding I have made in relation to the Waterside Hotel.
233 For those reasons, I am satisfied that in relation to the conduct dealt with in each of (ii), (iii) and (iv) of [222], Mr Vergara contravened s 28B(6) of the SD Act.
234 My ultimate satisfaction that Ms Ewin’s case in relation to these matters was proved on the balance of probabilities, includes consideration of the matters specified by s 140(2) of the Evidence Act. In particular, I took into account the nature of what Ms Ewin sought to prove in assessing the strength of the evidence necessary to establish the findings which I have made. In that respect, I regarded the gravity of the conduct in question as serious but not so serious as to resemble the seriousness attached to sexual conduct of a criminal nature.
235 Ms Ewin deposed that on the morning of 14 May she felt sick and did not want to go to work. She said she felt intimidated and delayed going to work until 11 am.
236 At about 3 pm that day Ms Ewin and Mr Vergara took a taxi from Flinders Street to a meeting at KPMG in Collins Street, Melbourne. Before getting into the taxi, Mr Vergara asked Ms Ewin if she had any thoughts about his proposition from the night before. She replied that she did not. Ms Ewin deposed that he also asked her what she was going to do to keep him happy.
237 When they got to KPMG, and while sitting in a meeting room, Mr Vergara asked Ms Ewin again what she thought about his propositions from the night before. She says she responded that she was not interested and that there would not be any affair. Mr Vergara said that he could not let it go. He said that it was mind blowing. She deposed that he said that he would have to masturbate to get through it and he would have a sore hand from masturbating so much at home and at work. Ms Ewin says she responded by telling Mr Vergara that he had to sort it out by himself or with his wife or get through it any way that was possible but that it had nothing to do with her. She said that she reiterated that she was not interested. Mr Vergara responded by saying he could not let it go. He said to her, “Tell me that it is not just me. You want it too”. Ms Ewin again claimed that she told him that she was not interested. She said she was there to do tax. Mr Vergara said that she needed to think harder about what she was going to do to keep him happy.
238 Ms Ewin deposed that these comments made her feel sick. She felt frightened of Mr Vergara and just did not want to be anywhere alone with him because she didn’t feel safe with him. She described Mr Vergara’s demeanour as being aggressive and dictatorial.
239 Ms Ewin deposed that she and Mr Vergara left KPMG at about 6.30 pm, took a taxi and arrived back to the LLA offices at about 6.40 pm. As I will identify, there is an issue as to whether Ms Ewin and Mr Vergara took a taxi or walked back from the meeting at KPMG. In support of her evidence of the trip by taxi, Ms Ewin produced a Cabcharge receipt which showed that a fare of $6.70 was paid for a trip on 14 May 2009 at about 6.36 pm.
240 Ms Ewin deposed that when they returned to the LLA office, the office was empty and dark. She says that she and Mr Vergara went into her office and turned the lights on. She switched on her computer and commenced working. Mr Vergara did not switch on his computer, he wished her a good evening and left the office at approximately 7 pm.
241 In her statement to police, Ms Ewin did not refer to feeling sick and starting work late on the morning of 14 May 2009. Her account of the conversation prior to getting into the taxi was a little different to that given in her evidence. Her statement includes a comment from Mr Vergara as to her thoughts about the previous night and her response that she didn’t understand it and he needed to sort it out with this wife perhaps through marriage counselling. However there is no reference to Mr Vergara asking what she could do to keep him happy. In her statement to police Ms Ewin said that Mr Vergara just smiled a strange smile and got into the front of the cab. The account given to police about the conversation at KPMG is similar to that given by Ms Ewin in her evidence-in-chief, although she did not say in her police statement that she felt frightened by Mr Vergara and did not feel safe with him.
242 A short description of the trip to KPMG was given by Ms Ewin to Prof Dennerstein and is recorded in Prof Dennerstein’s report. The description includes Mr Vergara saying that he hoped that Ms Ewin had thought hard about what she was going to do to keep Claudio happy. Mr Vergara is recorded as having said that Ms Ewin now owed him twice the beers. Ms Ewin is recorded as having said that Mr Vergara listed three women in three different jobs that he had “propped up”. Prof Dennerstein’s report does not include the detail of the conversations between Ms Ewin and Mr Vergara which Ms Ewin gave in her evidence-in-chief, including to the effect that Mr Vergara wanted a response to his proposition that they have an affair and his comments about not being able to let it go and needing to masturbate. Prof Dennerstein’s report refers to Ms Ewin feeling “rattled” on her return to the office. The report does not record Ms Ewin saying that she felt unsafe or that Mr Vergara had been aggressive. It was not suggested to Ms Ewin in cross-examination that the account given by her in chief was inconsistent with that given by her to Prof Dennerstein in relation to events on 14 May. She was taken to the comment in Prof Dennerstein’s report that Mr Vergara had listed three women that he had propped up and asked to identify who those women were. Ms Ewin did that.
243 Ms Ewin was cross-examined as to why she had brought Mr Vergara to the meeting with KPMG given her allegations about his behaviour on 13 May. In her evidence-in-chief, Ms Ewin had said that there were issues that needed to be clarified with KPMG in relation to work that Mr Vergara had worked on. She said in her evidence-in-chief and clarified in her cross-examination that Mr Newton was angry that Mr Vergara was running up bills with KPMG. She deposed that she had a meeting booked with KPMG and that it was Mr Newton’s suggestion that Mr Vergara clear his queries with KPMG. She denied that Mr Vergara had gone to KPMG at her invitation. Although called to give evidence by Mr Vergara, Mr Newton was not asked about that matter.
244 By the evidence given in his witness statement, Mr Vergara deposed that Ms Ewin had communicated to him on 14 May that she had an interesting time the previous couple of nights and was looking forward to doing it again sometime soon. He stated that during the day she invited him to attend a KPMG session to discuss tax matters. He responded by saying that he was not a tax expert and that he could not offer any value if he attended. Ms Ewin said something to the effect that he need not worry about that and that she just wanted him to come with her for some moral support and company. Mr Vergara deposed that he couldn’t refuse her request and agreed to go along.
245 Mr Vergara gave no evidence of any conversation prior to or in a taxi. He deposed that when he and Ms Ewin arrived at KPMG they went to a meeting room and that prior to the meeting, Ms Ewin suggested that they should go to a Latin bar to dance after the drinks at the Aquarium on Friday night. He said that he told Ms Ewin that he could not join her as it had been a big week and he would need to get home after the drinks at the Aquarium. He deposed that the meeting then lasted for an hour or two and that he and Ms Ewin then walked back to the LLA office. During that walk, Ms Ewin insisted that they go out Latin dancing after the Aquarium drinks function. Mr Vergara alleged that he confirmed that he could not join Ms Ewin to which he said she replied, “Don’t start with the family excuses again”. Mr Vergara said he tried to change the topic of conversation.
246 None of that evidence was put to Ms Ewin in cross-examination. In her rebuttal evidence, other than for minor matters of no consequence, Ms Ewin deposed that the evidence given by Mr Vergara was not true.
247 In his record of interview with police, Mr Vergara denied the conversations that Ms Ewin alleges occurred on the trip to KPMG. Mr Vergara did not make any of the allegations made in his evidence against Ms Ewin. In cross-examination he said that whilst he had thought the meeting at KPMG had occurred in the morning, given the evidence of Ms Ewin and the taxi receipt produced by her, he accepted that the meeting must have occurred in the afternoon. He said he did not recall catching the taxi back to the LLA offices.
248 I reject Mr Vergara’s account insofar as it differs from that of Ms Ewin. Again, I am satisfied, on the same basis as earlier expressed, that Mr Vergara’s evidence was fabricated as a further part of his attempt to portray himself as a victim of Ms Ewin’s sexual interest in him. My view is supported by the inconsistency between my finding that Ms Ewin and Mr Vergara did not walk back from KPMG and Mr Vergara’s evidence that on such a walk Ms Ewin insisted that they go out dancing.
249 Given the aggressive and persistent manner in which Mr Vergara sexually pursued Ms Ewin on the previous evening, including that he attempted to kiss Ms Ewin after she had rejected his advances, it is likely that Mr Vergara continued to sexually proposition Ms Ewin on the following day. I accept Ms Ewin’s evidence to the effect that he did insofar as the evidence given by her was consistent with the statement she gave to police. In doing so, I have taken into account my observations (later recorded) as to the absence of complaint or other action taken against Mr Vergara by Ms Ewin before 19 May 2009.
250 I find, by reference to the allegations made in Ms Ewin’s statement of claim, that on 14 May 2009, Mr Vergara said to Ms Ewin words to the following effect:
(i) What are your thoughts about last night?
(ii) I will have a sore hand from masturbating about you.
(iii) Tell me that it’s not just me, you want it too.
251 I further find that those comments were not encouraged or solicited by Ms Ewin and that Ms Ewin rejected Mr Vergara’s interest in her and told Mr Vergara that she was not interested in having a sexual affair with him.
252 The comments made by Mr Vergara were made in the context of the sexual propositioning of Ms Ewin which occurred on 13 May. In that context, the comment at (i) took up the same propositioning that had occurred the previous evening and in seeking Ms Ewin’s response, the conduct essentially repeated that sexual propositioning, not in terms, but by reference to what had been said on the previous evening. That conduct unquestionably involved an unwelcome sexual advance, an unwelcome request for sexual favours and other unwelcome conduct of a sexual nature. The comment at (iii) is of the same character. The comment at (ii) was unwelcome conduct of a sexual nature.
253 The conduct in question occurred either on the journey to or at the office of LLA’s accountants KPMG. The purpose of the travel and attendance was work related. The comments were made whilst each of Mr Vergara and Ms Ewin were carrying out functions in connection with being a workplace participant. Each of the comments made on 14 May involved conduct in contravention of s 28B(6) of the SD Act.
254 In arriving at those findings, I took the same approach to the matters specified by s 140(2) of the Evidence Act as I did in relation to the conduct on 13 May alleged against Mr Vergara.
15 May 2009 – at work at the lla office
255 Prior to commencing work on the morning of 15 May, Ms Ewin visited a Chemist on Elizabeth Street, Melbourne, where she purchased an oral treatment which she takes for her irritable bowel symptoms. Ms Ewin explained that she suffers from a condition known as irritable bowel syndrome which causes her to become constipated if she is stressed or upset. She treats her irritable bowel with an oral tablet as well as by applying a cream. She was asked about how an irritable bowel flare up affected her sexual activity. She said that sex was not comfortable because her bowel is full and a yeast infection is sometimes present in her vaginal and anal passages. She described sexual activity as “unpleasant and it smells”.
256 Ms Ewin produced a receipt from a Chemist for the purchase of the oral tablets she says she purchased that morning. The receipt shows that an oral treatment was purchased at a pharmacy on Elizabeth Street in Melbourne at 8:08 am on that morning.
257 When Ms Ewin arrived at the office she took a tablet for her irritable bowel and applied a cream to her back passage to control any yeast infection.
258 Ms Ewin deposed that during the working day on 15 May, Mr Vergara on two or three occasions asked her what she was going to do to “keep Claudio happy whilst he is in the corner doing journals”. Mr Vergara asked what Jemma was going to do keep him happy because she “always looked after Mark [Lafferty]”. Ms Ewin replied to Mr Vergara that “Mark is my permanent employee and I want him to stay, so I do significantly work alongside of Mark, but you will be doing tax consolidations and asset re-evaluations”. Ms Ewin deposed that she just kept saying to Mr Vergara, “You’re doing tax asset re-evaluations” and Mr Vergara kept saying, “Think harder”. Ms Ewin and Mr Vergara were alone in the room during these conversations.
259 In her statement to police, Ms Ewin gave a similar account of events in the office on 15 May.
260 Ms Ewin was asked by her counsel whether she could recall any comments made by Mr Vergara about himself on 15 May. She said that he made a comment that he had a big dick and that she could not refuse him. When asked if Mr Vergara had made sexual comments about his own conduct, Ms Ewin said that he had said that he masturbated in the shower. She said that Mr Vergara also said, “I really like working under you”. That, Ms Ewin deposed, was said with an emphasis on the word “under”. Those allegations are not specifically contained in the account given by Ms Ewin to police but may have been what she had in mind when she referred to Mr Vergara making “weird” and “ugly” comments.
261 There were some allegations made by Ms Ewin to Prof Dennerstein that were not referred to in Ms Ewin’s evidence-in-chief. In the report of Prof Dennerstein, a short account of events at the office on 15 May is given. The account includes that Ms Ewin was wearing trousers and boots and that her “boss” commented on her outfit and said, “All you need is a whip”. The report states that Mr Vergara then said, “Yeah, I would like a bit of that”. Additionally the report states that Mr Vergara was smug and kept saying, “Think hard about what you are going to do to keep me happy”. Ms Ewin confirmed in cross-examination that in those respects Prof Dennerstein’s report was correct. She said that Mr Newton was exiting the room and that he may have been in the hallway when Mr Vergara made the comment, “Yeah, I would like a bit of that”.
262 Ms Ewin deposed that before she left the office to go to the Aquarium function (to which I will shortly refer), she ate a sandwich and had a glass of milk to settle her stomach in order to deal with her irritable bowel. In her statement to police, Ms Ewin said that she had eaten a sandwich and had a glass of milk at 4.30 pm before she went to the Aquarium “to ensure I wasn’t drinking on an empty stomach”.
263 Ms Ewin also deposed that before she left for the drinks function she packed up her laptop bag, coat and handbag so that she would not need to come back to the office. She said she did that because she did not want to be at the office alone. She also said that she deliberately said to Mr Lafferty while Mr Vergara was in the room that she would not be returning to the office.
264 In cross-examination, Ms Ewin agreed that by the end of the working day on Friday 15 May, she continued to feel scared and frightened and sexually harassed by Mr Vergara. She was aware that Mr Vergara was going to attend the Aquarium function. When asked how it would make her feel knowing that Mr Vergara was going to be socialising with her, she replied [in reference to the Aquarium function] that she had tried not to be in Mr Vergara’s vicinity, she tried to avoid him.
265 In his witness statement, Mr Vergara stated that in the office on 15 May there were discussions in which Ms Ewin identified her expectation that he and Mr Lafferty would attend the drinks function after work so that they would be perceived as a functional team. He did not otherwise give evidence-in-chief about events at the office on that day. The account that he did give was not put to Ms Ewin in cross-examination. In her rebuttal evidence, Ms Ewin deposed that Mr Vergara’s account of discussions in the office was not true.
266 The allegations made by Ms Ewin to police about events at the LLA office on 15 May were not put to Mr Vergara in his record of interview. He was asked what transpired at the office on that day and he said, “Just work as normal”. Mr Vergara did not give any evidence which expressly or impliedly denied the evidence given by Ms Ewin of what Ms Ewin claimed he had said to her. Mr Vergara was not cross-examined on that subject.
267 I accept Ms Ewin’s evidence of the comments made by Mr Vergara to her at work on 15 May but, taking a cautious approach, I only do so in so far as her evidence was consistent with her specific statements made to police.
268 I find, by reference to the allegations made in Ms Ewin’s statement of claim, that during the day at the LLA office on 15 May 2009, Mr Vergara said to Ms Ewin words to the following effect:
(i) What are you going to do to keep Claudio happy?
269 I further find that the comment was not encouraged or solicited by Ms Ewin and was not welcomed by her.
270 The comment made is to be understood in the context of the conduct the subject of my earlier findings. In particular, on 13 May Mr Vergara told Ms Ewin that what he meant by such a comment was that, “I wanted you to fuck me”. In that context, the comment made was an unwelcome request for sexual favours. A reasonable person, having regard to all of the circumstances (including the prior rejections made by Ms Ewin) would have anticipated that Ms Ewin would be offended, humiliated or intimidated. The conduct occurred at the usual place of work of Mr Vergara and Ms Ewin.
271 I am satisfied that the conduct at the LLA office on 15 May constituted a contravention of s 28B(6) of the SD Act.
272 In arriving at those findings, I took the same approach to the matters specified by s 140(2) of the Evidence Act as I did in relation to the conduct on 13 May alleged against Mr Vergara.
15 may 2009 – the physical sexual HARASSMENT claim
273 I will now turn to consider Ms Ewin’s claims of sexual harassment based on her allegations that she was subjected to sexual assault and sexual intercourse on the evening of 15 May when she had either not consented or was unable, due to her impaired cognitive state, to provide informed consent.
274 As will become apparent, if the alleged assault and sexual intercourse occurred at all it occurred at or about the LLA office after Mr Vergara and Ms Ewin had attended a function at the Aquarium and then had drinks at a bar called the “Insignia Bar”.
275 There were no allegations of sexual harassment pleaded in respect of Mr Vergara’s conduct at either the Aquarium or the Insignia Bar. Despite that, evidence and submissions were directed at the question of whether the Aquarium or the Insignia Bar were “workplaces” within the meaning of s 28B(6). Much of the evidence on that issue concerned whether work functions were held at those venues. Given that no sexual harassment is alleged to have occurred at those venues, I need not determine that issue.
276 What occurred at the Aquarium and particularly what occurred at the Insignia Bar is nevertheless of significant relevance to Ms Ewin’s claims and needs to be considered. Insofar as it may be contextually relevant, it was common ground that the Aquarium function was a work function. The drinks session held at the Insignia Bar thereafter was encouraged by but was not a function organised by the employer of those who attended.
277 From about 4.30 pm on Friday 15 May 2009, a drinks function was held at the Melbourne Aquarium for employees of the Aquarium and others including staff at LLA. On 8 May 2009, Mr Newton had sent an email to LLA staff asking if everybody was “ok for drinks” on 15 May. The email referred to a newsletter of the Aquarium called “Fish of the Day” which I assume contained the initial invitation. Whilst that initial invitation was not in evidence a copy of the “Fish of the Day” of 14 May 2009 was. That newsletter referred to drinks on the following day to welcome new members of the finance team. It identified the starting time as 4.30 pm and the Aquarium as the venue. It stated that there was another function at the Aquarium at 6 pm and that “drinks will move to Insignia”. This was a reference to the Insignia Bar located across the road from the Aquarium in Flinders Street, Melbourne.
278 When Ms Ewin first arrived at the Aquarium, Mr Newton poured her a cup of light beer. She drank some of that beer. She deposed that Mr Newton then gave her a full strength beer in a glass. She consumed three quarters of the glass. Ms Ewin left for the Insignia Bar at about 7 pm.
279 Ms Ewin deposed that she had minimal contact with Mr Vergara at the Aquarium function. She spoke to a marketing manager for a while and it was only when Mr Newton gathered the LLA staff together and introduced them to the new accounting team that she encountered Mr Vergara for about 10 to 15 minutes.
280 In her statement to police, Ms Ewin said that at the Aquarium function she had half a light beer in a plastic glass and three quarters of a bottle of full strength beer before leaving for the Insignia Bar.
281 In his witness statement, Mr Vergara deposed that at approximately 5 pm he and Ms Ewin together with Mr Lafferty, Ms Thomas and others walked across to the Aquarium from the LLA office. There they met up with approximately 50 Aquarium employees and had a few drinks for around an hour and a half. They mingled with the people from the Aquarium and then he and Ms Ewin had a group discussion with the Aquarium finance team. He deposed that in that group, Ms Ewin shared her experiences with contractors working for LLA at Southport and the numerous contractors that Ms Ewin had hired and fired along the way. He deposed that on one occasion when he was coming back from the bathroom and as Ms Ewin was travelling towards the bathroom, she pulled his upper arm towards her and positioned her face next to his ear. Mr Vergara thought that she wanted to tell him something privately but instead Ms Ewin kissed his earlobe, smiled sweetly and proceeded into the women’s bathroom. He further deposed that he specifically recalled a conversation involving himself and Ms Ewin with a particular Aquarium employee whose name he could not recall. He said that conversation related to investing in LLA shares, in relation to which Ms Ewin said, “You have got to be crazy to invest anything into this company”. According to Mr Vergara, the function came to an end at about 6.30 pm when most people started vacating the premises. At that point Ms Ewin came up to him and said that they should have only a few drinks with the group and then head to Latin bars that he knew for dancing. He deposed that Ms Ewin told him not to tell anyone else in the group about the two of them going out dancing. He responded by saying that they should just go out with the group and not on their own. Quite a few people from the Aquarium function proceeded to the Insignia Bar across the road.
282 None of that evidence given by Mr Vergara was put to Ms Ewin in cross-examination. In her rebuttal evidence, Ms Ewin deposed that the evidence was untruthful except for the following matters. She agreed that at the Aquarium, the LLA staff met up with approximately 50 Aquarium employees and stayed for approximately an hour and a half. She agreed that she mingled with other people at the Aquarium. She agreed that she and Mr Vergara and others were in a group conversation but referred to that as the instance where Mr Newton had gathered the LLA accounting team and introduced them to the Aquarium’s finance team. She agreed that alcohol, soft drink and finger food was available. She recalls going to the ladies’ bathroom but denies seeing Mr Vergara on her way to or from the bathroom. She agreed that the function at the Aquarium ended at approximately 6.30 pm.
283 Mr Vergara was asked about the function at the Aquarium in his record of interview with police. None of the allegations made by Mr Vergara in his witness statement about Ms Ewin’s conversations and conduct towards him was referred to by Mr Vergara in his interview with police. In response to a question as to whether he knew whether Ms Ewin had been drinking alcohol at the Aquarium, Mr Vergara said he did not know. He said “…she would – could have been somewhere else. I wasn’t specifically talking to her”.
284 I reject Mr Vergara’s evidence that Ms Ewin kissed his earlobe, suggested they go dancing or otherwise had any personal contact with him at the Aquarium. That evidence is inconsistent with what he told police and, in my view, was given in furtherance of his untruthful construct that Ms Ewin had sexually pursued him.
285 In his record of interview, Mr Vergara stated that he drank quite a few full strength beers at the Aquarium.
286 A floor plan of the Insignia Bar (“the Bar”) was tendered through Ms Ewin. The Insignia Bar is located on the north-east corner of Flinders Street and King Street, Melbourne. The front door of the Insignia Bar faces Flinders Street with large bay windows to either side of the centrally positioned door. Looking into the Insignia Bar from the front door there were, broadly speaking, four main areas of the Bar. To the left, on the King Street side, five Chesterfield couches comprised a sitting area. The bar area took up most of the far right hand side of the room. The centre of the room between the sitting area and the bar was unfurnished other than for a shelf on a floating wall towards the back of the facility which separated the main part of the facility from the back door (into King Street), the toilets and the back office area. On that floating wall was a mock waterfall (“the waterfall wall”). In front of the waterfall wall was a shelf at which patrons could stand and drink. At the far back left hand corner of the room a side wall, attached to the waterfall wall, created an alcove. The toilets and the back door exit to King Street were accessed by walking through that alcove.
287 Ms Ewin deposed that on entering the Insignia Bar she and Ms Thomas placed their belongings beside a Chesterfield couch. The group that she came with stood towards the back of the Bar at the shelf in front of the waterfall wall. Jugs of beer were purchased for the group. Initially two jugs were purchased by Mr Lafferty and then two jugs by Ms Ewin. Ms Ewin could not recollect Mr Vergara purchasing any jugs of beer. She did recall that when she returned after purchasing two jugs, her glass was on the shelf and that Mr Vergara filled her glass and that of other people.
288 Ms Ewin deposed that during the evening and after purchasing the jugs of beer, she was given a scratch ticket. A while later Ms Thomas asked her if she won anything on her scratch ticket. She scratched her ticket and laughed when she saw she had won a t-shirt. She collected the t-shirt at the bar and came back to talk to Ms Thomas. At that point Mr Vergara came to stand next to Ms Thomas at the right hand end of the waterfall wall just next to the bar. Ms Ewin was talking to Ms Thomas when Mr Vergara silently reached across and just took the t-shirt, stared at her and put the t-shirt into his bag. Ms Ewin described the incident as weird. Her evidence was that no words were said.
289 Ms Ewin deposed that she had tried to avoid Mr Vergara. She spent the evening talking to either Mr Lowe, Ms Thomas or “Bruce” before moving to another splinter group that was in the middle of the Bar. She then moved to the front right hand bay window where she spoke with Mr Lafferty and others.
290 Ms Ewin deposed that she started to feel sick. Although she did not identify a time, other evidence suggests that this occurred just before 10 pm. She went back to where Ms Thomas was standing at the shelf on the waterfall wall. She started to feel hot and nauseas. Ms Ewin elaborated that she started to feel hot and sweaty and started to feel the room going in and out. She felt like she was going to be sick and she thought she would eat some potato wedges with Ms Thomas so that she could get on the train and go home.
291 Ms Ewin deposed that she had never before experienced a sensation like that which she then experienced. She had been affected by alcohol in the past but this did not compare. It was a different sensation, she described it as more like food poisoning.
292 Ms Ewin ordered some wedges and went to get some water. Jugs of water were located at the far corner of the drinks bar towards the Flinders Street entrance. Mr Vergara and an elderly gentleman were positioned there. As she stood with her water, Mr Vergara said, “I’ve laid my cards on the table now. You can’t back out and leave me hanging. Have you got your period and is that why you’re ignoring me?” Ms Ewin deposed that she did not respond but turned away from Mr Vergara and struck up a conversation with the elderly man. As Ms Ewin tried to speak to the elderly man, she suddenly felt like she was going to vomit and her legs started to buckle. She was sweating. She staggered to the ladies’ toilets and proceeded to vomit. She deposed that at some point Ms Thomas came in. She could not recall any conversation with Ms Thomas in the toilets. She was vomiting and trying to clean herself up. She felt quite giddy and disoriented in the toilets.
293 Ms Ewin then came out of the toilets and her evidence was to the effect that she was standing in the alcove at the back of the Bar. She deposed that Mr Vergara appeared with his backpack on his shoulder. He shoved his face into hers. His face was all screwed up and angry. She could not recall any conversation. When asked what was her next recollection, she said that her recollection was blank from that point for approximately two hours and that her next recollection was being back in Flinders Street at the front door of the Insignia Bar [which other evidence suggests occurred at approximately 12.00 am].
294 Ms Ewin described what she had been wearing. She had on a black skivvy and a black “ballet top” which went around and was tied behind her waist. She said she wore a pair of bone coloured tailored three quarter length slacks that were firm at the waist. The slacks came out at the thigh and then tapered down and were tightly cuffed around her mid-calf. She had a pair of knee high black leather boots on that were square toed and square heeled. Underneath she wore a black sports bra and black full brief cotton underpants. Ms Ewin deposed that when dressing herself in the outfit she had on it was necessary for her to put the pants on first and then the boots and that when undressing it was necessary for her to take the boots off and then take her pants off. She explained that was so because it was not possible to get the pants over the heels of the boots.
295 In the course of her examination-in-chief as to what occurred at the Insignia Bar Ms Ewin was asked whether she could recall how much alcohol she had that night. She said that she had four beers. Ms Ewin said that she was able to know what she had consumed because she was careful about what she was having. Ms Ewin stated that she had taken her medication for irritable bowel in the morning and had a yeast infection and that beer was not the best thing to consume in those circumstances.
296 Ms Ewin was asked by her counsel whether she had any conversation with Mr Vergara in which she gave consent to any sexual intercourse. She said that she did not. She had spent the evening avoiding him because she did not want to be near him.
297 In her statement to police, Ms Ewin said that she had spent most of the evening at the Insignia Bar talking with Mr Lowe, Ms Thomas and “Ivor” [which other evidence suggests was a diver working at the Aquarium and the person Ms Ewin had referred to in her evidence-in-chief as “Bruce”]. She said that she tried her best to avoid Mr Vergara but felt that he was always in her peripheral view. She described at one stage talking to an elderly male when Mr Vergara interjected in a manner consistent with the description given in her evidence-in-chief. She mentioned that she had won a t-shirt and that Mr Vergara took the t-shirt from her and put it in his bag. She said that all of a sudden she began to feel quite drunk and ordered some wedges to help her feel better. She gave a precise time for the purchase of the wedges as 9.58 pm which she said was taken from the receipt for the purchase. She said that while standing at the bar she stumbled forward as if her legs had buckled and she went to the ladies’ toilet and vomited. Ms Ewin described herself as feeling quite nauseous and that the bathroom seemed like it was expanding and contracting. She stated that when she came out of the toilets Mr Vergara was standing there with his backpack on his shoulder. She said he pushed her against the wall and his face was pushed up close to hers. Her next memory was standing out in front of the Insignia Bar on Flinders Street. At the outset of her statement to police she said that at the Insignia Bar between 7 pm and 10 pm she had four small beers taken from jugs shared with her work colleagues.
298 In cross-examination Ms Ewin confirmed that she had four small beers at the Insignia Bar. She was then cross-examined about the t-shirt that she had won. She said that she did not try and stop Mr Vergara from taking the t-shirt as her thoughts were in slow motion and she thought what he did was odd. She deposed that she had lost her memory after vomiting in the toilet and coming out which would have been approximately 10.15 pm. She said that from 7 pm to 10 pm she had been avoiding Mr Vergara. She had retained her memory of events between 7 pm and approximately 10 pm. She was asked if she had thought [by reason of Mr Vergara’s presence] whether it might have been safer to leave the Insignia Bar and go somewhere else where she could be safe. She answered no, she was with Ms Thomas, it was a public place and it was a work function, she said “I didn’t need to leave”. She said that despite feeling scared and frightened of Mr Vergara, she was the most senior executive from the company at the Bar. She deposed that she was by herself when she vomited in the toilet and that Ms Thomas came into the bathroom for a short period when she was cleaning herself up. She said that Ms Thomas did not assist her at all in the toilets and that Ms Thomas came in to check on her. She wiped her own vomit up and washed her own face and hands. When asked again whether Ms Thomas had assisted her, Ms Ewin said that Ms Thomas showed concern for her but she had tended to her own issues. An arguably inconsistent suggestion in Prof Dennerstein’s report that she was assisted by Ms Thomas was not put to Ms Ewin.
299 In cross-examination, Ms Ewin was taken to two exchanges in the Nurse-On-Call conversation. The first exchange occurred early in the conversation and immediately followed the exchange I have previously quoted (part of which is here repeated):
Ms Ewin: Um, and that was the end of the conversation and he tried to kiss me and I said “that’s not appropriate” and I didn’t go and report it anywhere but then they had work drinks on the Friday night and I said um, we had work drinks at the pub and I said um, “I’m going to say goodbye to people” and said, “listen, I’m just going to grab my laptop and I’m going home”.
Nurse: Yes
Ms Ewin: And he said “oh look I’m leaving too”, and um yeah it was aggressive and um yep I’m covered in bruises, um…
300 The second exchange that Ms Ewin was taken to occurred about a quarter of the way through the conversation with the nurse and was as follows:
Nurse: Did you lose consciousness at all during the assault?
Ms Ewin: umm there’s blank bits
Nurse: You didn’t hit your head or anything?
Ms Ewin: No
Nurse: No, OK
Ms Ewin: Just got a fat lip
Nurse: Sorry, I can’t hear you Jemma
Ms Ewin: Just a fat lip
301 Responding to questioning as to whether the first exchange was factually correct, Ms Ewin deposed that the sentence [“…I said um, ‘I’m going to say goodbye to people’ and said, ‘listen, I’m just going to grab my laptop and I’m going home’”] was not correct.
302 She initially explained that she had “no memory at all at that point”. Ms Ewin said that she was “grappling” with the nurse “distressed, trying to understand how I got home”. Later on in her cross-examination when taken back to that sentence and asked whether she had a recollection of saying that to Mr Vergara at the Insignia Bar, Ms Ewin said that she had no recollection and that what she had said to the nurse was her assumption of how she left the Insignia Bar. She said, that she was still confused on the Sunday when she spoke to the nurse. Ms Ewin gave the same explanation in relation to the second comment in the first exchange that Mr Vergara said “oh look I’m leaving too”.
303 Ms Ewin deposed that her comment in the second exchange [“there’s blank bits”] was factually correct. She said, “From outside the bathroom to receiving my articles [possessions] on Flinders Street, that is correct”.
304 Ms Thomas was called by Ms Ewin. As earlier set out, Ms Thomas was the Executive Assistant to Mr Schryver and Mr Newton. For reasons that will become apparent I regard Ms Thomas as an important witness who was in a position to make independent and significant observations regarding the interactions between Ms Ewin and Mr Vergara at the Insignia Bar, the state of mind of Ms Ewin and the extent to which Ms Ewin appeared to be affected by alcohol or some other substance.
305 I found Ms Thomas to be an honest and reliable witness. Prior to 15 May, Ms Thomas had only been working at LLA for a few weeks. She described her relationship with Ms Ewin as not close, but she and Ms Ewin conversed and whilst they worked at LLA they caught up once or twice for drinks before going home. Since the time that Ms Ewin left LLA, Ms Thomas had caught up with her once for a coffee to see how she was going. Ms Thomas had not talked to Ms Ewin for a number of years prior to giving her evidence. She described Mr Vergara as someone she would not care to get to know. She said that she tried to hold a couple of conversations with him but it never went anywhere and so she stopped bothering. It was not suggested to Ms Thomas that her evidence was unreliable by reason of her relations with Ms Ewin or her attitude towards Mr Vergara and I have not come to that view.
306 The reliability of Ms Thomas’ evidence as to what occurred at the Insignia Bar may however have been affected by the alcohol she consumed on that occasion. In her cross-examination she stated that she was starting to feel tipsy at about the time she arrived at the Insignia Bar. In her MPOL statement Ms Thomas said she was quite tipsy at the time and that she would not have driven as she had a real lot to drink. I have taken that matter into account. I have however taken the view that the detail of the evidence given by Ms Thomas in her statement to the police (to which I will shortly refer) suggests that her memory was not significantly affected by alcohol. In the end, I regard Ms Thomas’ evidence as reliable.
307 Ms Thomas’ statement to police contains the most comprehensive account of her observations at the Insignia Bar. Understandably, given the many years between the events in question and the time that Ms Thomas gave her evidence, her account in the witness box was less detailed and there were matters that Ms Thomas could no longer recall. I have however taken into account the evidence she gave in Court as well as her observations recorded in the statement taken by MPOL, in addition to her statement to police.
308 In her statement to police, Ms Thomas said that when the group of about 15 or 20 arrived at the Insignia Bar from the Aquarium, they broke up into about three or four different groups of people. A couple of jugs of beer and some wedges were ordered. Turns were taken to buy jugs of beer. In her evidence-in-chief, Ms Thomas identified more precisely the location of where the group that she was with were standing. She identified that as being at the end of the bar where the waterfall wall met the bar on the right-hand side of the room as viewed from the Flinders Street entrance. She said there were other people from the Aquarium a little further down the bar. Her recollection was that the group from LLA was slightly separated from the group from the Aquarium.
309 In cross-examination Ms Thomas was asked about the extent to which Ms Ewin stayed with the LLA group that was standing at the bar. She said that Ms Ewin was sometimes with the group and that she walked in and out although she really could not recall other than that Ms Ewin was there sometimes. Ms Thomas recalled that she had a couple of conversations with Ms Ewin. She did not observe that Ms Ewin appeared frightened, terrified or scared at that time.
310 In her statement to police, Ms Thomas said that she recalled Mr Lafferty and Ms Ewin standing together at the bar eating wedges. She said that after making that observation, she later observed that Ms Ewin had been missing for a little while. She assumed that Ms Ewin had gone to the toilets and went looking for her. She explained the reason for her concern as follows:
[Ms Ewin] had made a comment about Claudio during the night that made me feel that something wasn’t quite right. She’d said something like “he’s a bastard” or “something’s not quite right with him”, “fucked in the head” or something along those lines.
311 Ms Thomas felt that something was not as it should be and wanted to check that Ms Ewin was ok. She went towards the ladies’ toilets where she saw Mr Vergara and Ms Ewin together. Ms Ewin had her back to the wall and Mr Vergara’s arm was on her. Ms Thomas told police that Mr Vergara’s forearm was across Ms Ewin’s body holding her against the wall. She observed that Ms Ewin looked very angry, her eyes were a bit screwed up, her lips were pursed and tight. She could see Ms Ewin talking as though she was yelling at Mr Vergara. Ms Thomas observed a snarl on Ms Ewin’s face. She said that it was definitely not a sweet conversation. Ms Thomas did not know whether Ms Ewin was yelling or not but her mouth was “too open to be speaking calmly”.
312 When Ms Thomas saw Ms Ewin and Mr Vergara, she walked up to them and said, “Is everything ok?” Ms Ewin responded by saying something like, “I am handling it”. Ms Thomas described Ms Ewin’s words as strong and forceful but not directed at her. Ms Thomas said that she then went back to the group. She said that because Ms Ewin appeared so angry she felt that Ms Ewin was handling the situation and thought it was ok to leave her. She wasn’t completely comfortable about that but respected what Ms Ewin had said and did not want to over-step the mark.
313 In her evidence-in-chief, Ms Thomas located where that exchange occurred by reference to the floor plan sketch of the Insignia Bar tendered by Ms Ewin. She said the exchange had occurred around the corner from the waterfall wall. She placed Ms Ewin against the side wall in the area leading towards the toilets and the King Street exit at the rear of the Insignia Bar which I have earlier described as the alcove.
314 In her evidence-in-chief Ms Thomas referred to the exchange as an intense conversation. She said they were arguing. She recalled they were fairly close in body and that there was physical contact although she could not recall the point of contact. She was taken to the event in cross-examination. She was asked whether Mr Vergara had made any comments. She could not recall. She said she was paying attention to Ms Ewin. She was asked about Ms Ewin’s demeanour when responding to her. Ms Thomas said that Ms Ewin seemed angry but that the anger was not directed at her.
315 In her statement to police, Ms Thomas went on to describe a second incident of significance. She described that incident as having occurred “sometime after” the incident I have just described. She was asked whether she was able to say how much time elapsed between the two incidents. She said that she didn’t remember. When pressed in cross-examination she said it wasn’t five minutes later, it could have been twenty minutes later but she thought it was longer than that, although Ms Thomas said she really could not recall.
316 In relation to the second incident, in her statement to police Ms Thomas said that she went to the ladies’ toilet. She said that Ms Ewin was there. Ms Thomas’ observations are recorded in the statement as follows:
She appeared drunk. She was swearing a lot about Claudio. I can’t remember exactly what she was saying but not a word was positive. She was definitely commenting on his aggressiveness and his ego and swearing a lot about what he’d said to her. She was leaning on the sink. She was really angry about Claudio telling her he was “going to have her” and she said to me words to the effect, “the ego of him there’s no chance in hell”.
317 Ms Thomas’ statement then records that at that point, she observed a pair of men’s yellow boots in the first cubicle of the ladies’ toilets. The door of the cubicle opened and a man (whom she identified by name) walked out. Ms Thomas’ statement records her surprise and that of Ms Ewin. Nothing more was made of that oddity in the context of this proceeding.
318 Ms Thomas’ statement to police continued:
Jemma seemed out of it, her words were slurred, swearing a lot more than usual. She was swaying a little as she was leaning on the sink. She was glazed over and dopey. She looked tired. I left her in the ladies’. She went into the cubicle and I went back to the group. After that I don’t recall seeing her again.
319 Later in her statement to police, Ms Thomas said that the last time she noticed Mr Vergara was when she observed the first incident.
320 In her evidence-in-chief, Ms Thomas gave evidence about the incident in the ladies’ toilet. She said that Ms Ewin appeared very out of it and quite drunk. She was slurring and leaning on the wash basin. She described Ms Ewin as “swearing like a trooper”. When asked if she could recall what Ms Ewin was saying she said that Ms Ewin mentioned Mr Vergara in negative terms, that Mr Vergara was very arrogant and that he would never have her. She said Ms Ewin called him a number of names.
321 Asked to explain what she meant when she said that Ms Ewin appeared “out of it”, Ms Thomas said that her eyes were a little glazed over and that Ms Ewin was not focusing on her. Pressed as to her observations about Ms Ewin’s level of coherence and general presentation, Ms Thomas said that Ms Ewin was just mumbling most of the time and swearing, she was leaning on the sink and not able to stand on her own very well.
322 In cross-examination Ms Thomas could not recall whether she saw that Ms Ewin had vomited. She said she might have vomited in the toilet. She did not recall if she assisted Ms Ewin cleaning herself up. She did not recall if Ms Ewin had communicated to her that she was scared, frightened and terrified of Mr Vergara.
323 In her statement to police, Ms Thomas said that the Bar was closing and they were asked to leave at about 11 or 11.30 pm. Before leaving they were informed by the barman that Ms Ewin’s bag and purse were still there. Ms Thomas went to the ladies’ toilets to check if Ms Ewin was there but there was no one in the toilet at all. Ms Thomas asked the barman to leave Ms Ewin’s belongings behind the bar. When Ms Thomas went outside onto King Street she looked up and down the street and also looked up and down Flinders Street. There was no sign of either Ms Ewin or Mr Vergara. In her MPOL statement, Ms Thomas said that she thought Ms Ewin might have gone for a walk. She said she was a bit concerned about Ms Ewin but did not know her well enough to know whether “this was usual for her”.
324 In that statement, Ms Thomas said that she mostly drank champagne that night but also had a drink out of a jug of beer being shared by the group. She does not think she was affected by drinking from the shared jug of beer. She was asked in cross-examination whether she recalled being impacted by drugs on the night of 15 May. She said definitely not, not at all.
325 In his witness statement, Mr Vergara deposed that at the Insignia Bar he recalled being with a group of people consisting of Ms Ewin, Mr Lowe, Mr Lafferty, “Ivor the Diver” and a few others that he had only met that night. He stated that they were drinking tap beer and were taking turns in buying two jugs of beer at a time. He said that at one point Ms Ewin approached him and passed him a t-shirt wrapped in its plastic bag that she said she had just won after purchasing her round of beer. She asked him to place it in his backpack and return it to her later. He deposed that as time went on, “I knew that I had a few too many” and at approximately 10.30 pm he thought he had better leave. He said goodbye to the group and started making his way towards the King Street exit. He noticed Ms Ewin chatting at the bar, he shouted goodbye to her and she said, “Wait for me we are going dancing”. Mr Vergara stated that he replied that he was out of there and it was home time. Under a heading in his witness statement, “Kissing at the Insignia and agreeing to go back to the office”, Mr Vergara stated that at that point he could remember Ms Ewin pulling him back by his backpack and then the next thing “we were kissing somewhat passionately near the King Street exit door”. His evidence was that he thought that went on for five to ten minutes and that Ms Ewin started to get concerned that work colleagues might see them so “she suggested that we go back to the LLA office for some privacy to which I agreed”. He deposed that they then left the Insignia Bar and walked back to the office up King Street turning right on Flinders Lane and then right again into Highlander Lane.
326 None of that evidence deposed to by Mr Vergara was put to Ms Ewin in cross-examination. In her rebuttal evidence Ms Ewin denied the truth of the evidence given by Mr Vergara, so far as that evidence dealt with the period at the Insignia Bar that Ms Ewin was able to recollect.
327 In his cross-examination, Mr Vergara said that beyond the conversation about the t-shirt and the conversation as they left, he did not recall any one to one conversation with Ms Ewin at the Insignia Bar. He thought he had bought at least two jugs of beer. He did not specifically remember pouring a beer for Ms Ewin. It was possible that he had. He denied the possibility that he placed anything [other than beer] into Ms Ewin’s glass.
328 Mr Vergara confirmed in cross-examination his observation given to police in his record of interview that Ms Ewin was drunk. He said he was drunk as well.
329 He was asked whether during the course of the evening he and Ms Ewin were in a position in the alcove near the toilets where Ms Ewin was against the wall. Mr Vergara deposed that he and Ms Ewin were close to the wall in the position where he had earlier explained the kissing had occurred. He denied having his arm against Ms Ewin so that she could not move and said that he did not recall and did not believe that any heated discussion had occurred between them. He deposed that the only occasion he could recall where he and Ms Ewin were together near the toilet area [the alcove] was the occasion when they were passionately kissing.
330 Earlier in his cross-examination, Mr Vergara had located on the sketch of the floor plan of the Insignia Bar tendered by Ms Ewin, where he said the passionate kissing had occurred. He identified a position just inside the alcove to the left of and slightly behind the waterfall wall. He described that position as adjacent to where the LLA people were drinking and said that people hovering in the area where the LLA people were drinking would have had a full view of where he and Ms Ewin were kissing.
331 In his record of interview with police, Mr Vergara said that a group of about 10 people including Ms Ewin came over to the Insignia Bar from the Aquarium. Asked what happened at the Insignia Bar he said, “We just kept on drinking a hell of a lot, probably more than any of us could – could tolerate”. He said that there were a few groups of people and that Ms Ewin was coming and going. He thought that Ms Ewin had drunk “probably the same as everybody…a lot”. Asked how he had felt during the course of the night, he said he had been feeling “happy” and “just normal”.
332 In the record of interview, Mr Vergara denied that he had any heated discussion with Ms Ewin. That denial is inconsistent with a response which Mr Vergara gave in the first pretext conversation. In that conversation, Ms Ewin put to him that based on what Ms Thomas had told her they had been arguing before they left the Insignia Bar. To that Mr Vergara responded with, “OK” and the conversation moved on.
333 Mr Vergara’s description to police of what happened prior to leaving the Insignia Bar was significantly different to that which he gave in chief and later confirmed in cross-examination. He was asked initially whether when he left the Insignia Bar he had any conversation with Ms Ewin about what was going to take place. He said, “No” and then said that he did not recall and that they were drunk. He said, “I can’t tell you the content of what was discussed…I can’t remember”. Asked why did he go back to the office, Mr Vergara said “That’s a good question, and I – I dunno”. He continued by saying that he thought that both he and Ms Ewin would have had intentions of finding a private area. He was asked why he would have wanted to find a private area to which he responded that he didn’t know, “We just went back into the office. There was a bit of carrying on and we – before we left Insignia, there was even carrying on between her and I in terms of kissing and so forth…”. Mr Vergara denied to police putting any drugs in Ms Ewin’s drink.
334 In cross-examination it was put to Mr Vergara that there had been no conversation at all between him and Ms Ewin about the reason for leaving the Insignia Bar. Mr Vergara insisted that there had been a conversation. He was then taken to the answers he gave to police and it was again suggested to him that there had been no conversation. He insisted that there had been a conversation in which he and Ms Ewin both agreed to go back to the office. It was suggested to him that he had therefore lied to the police because he had told police that there was no conversation. Mr Vergara replied, “In the context of being with police, I did not lie to the police”. He insisted that he did tell police why he and Ms Ewin went back to the office. He pointed to his statement to the police as to what he perceived were his and Ms Ewin’s intentions to find a private area as an example of having told the police why they went back to the office. Mr Vergara was unable to identify any statement made to police to the effect that Ms Ewin suggested that they go back to the LLA office for some privacy. No such statement was made by Mr Vergara to police.
335 After the end of his cross-examination, Mr Vergara was given an opportunity to present evidence in re-examination. He confined re-examination to the tender of a further copy of the floor plan for the Insignia Bar which Ms Ewin had tendered. The copy which he then tendered identified where Mr Vergara now said that he and Ms Ewin had been kissing and also where the LLA group had been standing. A comparison of Mr Vergara’s evidence in cross-examination as to where he claimed the kissing occurred and as to where the LLA group was standing, with that presented in his re-examination shows a significant disparity. The evidence given in re-examination had the position of the kissing located further into the alcove and closer to the side wall. Relative to the evidence given by Mr Vergara in cross-examination, that re-positioning put the position of the alleged kissing out of view of where Mr Vergara suggested the LLA group had been standing. Mr Vergara did not seek to explain in his re-examination the previous evidence he gave that the LLA group would have had a full view of he and Ms Ewin kissing. Other than Mr Vergara, no witness gave evidence that Mr Vergara and Ms Ewin were kissing at the Insignia Bar.
336 The question of what conversation occurred between Mr Vergara and Ms Ewin before they left the Insignia Bar was also briefly referred to in the first pretext conversation in the following exchange:
E: I remember being at the bar, and saying to you, “no”. I don’t know where my mind set would have flicked to saying “let’s walk out the side door”. That’s the bit I don’t get.
V: I remember one thing, and I remember that I was leaving, just right at the end I said “I’m gonna go” and you said “come back”.
E: Oh see that’s inconsistent with my understanding of arguing at the toilet door.
V: Yeah well, I can clearly remember that, so I mean, I don’t know if you’re suggesting that this was a one-sided thing, because I can tell you now it definitely wasn’t -
E: Well I would have said that the answer was no. Based on Debbie coming around the corner and seeing us arguing outside the ladies’ toilet…
337 Mr Cameron Lowe was called by Mr Vergara. Mr Lowe was the IT officer at the Aquarium and provided IT support to LLA. Mr Lowe thought that the Aquarium function ended at about 6 or 6.30 pm. After that he went over to the Insignia Bar to continue drinking. He did not think that he had spent time with any one particular person or group but he did recall being with Ms Ewin. One of the things he recalls they spoke about was that she was a masseuse. Asked by Mr Vergara whether he noticed anything unusual, odd or strange, when he was with Ms Ewin at the Insignia Bar, Mr Lowe replied that he did not. He confirmed the truthfulness of a statement given to police and dated 30 December 2009. Mr Vergara tendered Mr Cameron’s statement to police. In that statement Mr Lowe said:
I spent a fair bit of time with Jemma, she was doing most of the talking. She was babbling on about things and it seemed she’d had a few drinks to the point where she’d had too many to be driving home. She was fairly coherent. I could understand her but she was just talking a lot to the point where I couldn’t get a word in. We were in a group together. My last memory of Jemma was seeing her at the bar.
338 In that statement, Mr Lowe went on to say that he did not talk to Mr Vergara too much. He saw Mr Vergara standing with a drink in his hand and nothing stood out about him. He also said that he left the Insignia Bar before closing at a time when a lot of the group were still there.
339 In his evidence-in-chief he said that when he left the Insignia Bar he was reasonably drunk. Mr Lowe was not cross-examined.
340 Mr Lafferty was called by Mr Vergara. He attended the Aquarium function and then moved on to the Insignia Bar. He was drinking beer. He was purchasing his own drinks. He did not particularly recall who he was socialising with at the Bar other than one Canadian lady. He thought he probably spoke with Mr Vergara and also with Ms Ewin. He was not able to recall anything that stood out. He did not recall anything unusual about Ms Ewin on that evening. He was not at the Bar for long. He thought that he left at about 8 or 8.30 pm.
341 Mr Lafferty confirmed the truthfulness of a statement he gave to MPOL on 21 January 2011. In that statement he said he thought he headed off at about 8.30 or 9 pm. He didn’t want to drink too much as he was playing football the next day. He said he recalled Ms Ewin going from group to group and talking. Nothing in particular stuck in his mind. He hadn’t been out with Ms Ewin before, he had no idea whether she was drunk or not.
342 Mr Vergara called Orea Tsafanos. Ms Tsafanos was a longstanding employee at the Insignia Bar. She was working there on 15 May. She gave evidence about Ms Ewin returning to the Insignia Bar to collect belongings that had been left behind. I will shortly detail that evidence. She also gave evidence relevant to events which occurred at the Insignia Bar before Ms Ewin and Mr Vergara left. That evidence is contained in a statement dated 9 July 2009 given by Ms Tsafanos to police. The statement was tendered at the instance of Mr Vergara.
343 In her statement, Ms Tsafanos recalled a big group of people coming to the Bar at around 7 to 7.30 pm. After closing time she remembered noticing a wallet, a laptop and possibly a jacket in the corner near the front window. That property had been left behind. She said that a couple of people who were still in the Bar knew who the property belonged to but didn’t know where she was. They requested that the property be left at the Bar because “she may come back”.
344 Ms Tsafanos said to the police that at around midnight a female was waiving at the door seeking that it be opened for her. She recognised the female as one of the people who had been drinking at the Bar. Later in her statement, Ms Tsafanos referred to observations she had made earlier in the evening about the woman when she had been at the Insignia Bar. There is no issue that the woman Ms Tsafanos had in mind was Ms Ewin. In her statement to police, Ms Tsafanos said that when the woman was in the Bar she was fine, she was being friendly, talking to everyone. She then said:
Later in the evening, around, I can’t be sure when but it was before they left I saw this female and a male talking together near the toilets. I didn’t take much notice of them, then, or through the evening.
345 Ms Tsafanos also identified that there was a male outside waiting for the female seeking her belongings. She said about him that she thought he was the same guy who she had seen talking with the female [Ms Ewin] near the back of the venue towards the toilets. She said she did not notice anything out of the ordinary.
From the Insignia Bar to the LLA office
346 In his witness statement, Mr Vergara stated that from the Insignia Bar he and Ms Ewin walked apart back towards the office. His evidence was that they walked up King Street turned right into Flinders Lane and then back down into Highlander Lane towards the LLA office.
347 Mr Vergara told police that he left the Insignia Bar at “maybe 10.30 pm, 11”. He was taken to that evidence in cross-examination and agreed that he and Ms Ewin “definitely left about 10.30 pm”. Mr Vergara confirmed by reference to records shown to him, that his swipe card was used at 10.39 pm to access the building in which the LLA office was located. He said to police and confirmed in cross-examination that it took five minutes for he and Ms Ewin to walk from the Insignia Bar to the LLA office. He described the walk as a short stride of about 150 metres.
348 Mr Vergara’s witness statement contained a heading, “At the office – Stripping and erotic dancing”. The following evidence was given under that heading:
As we exited the lift the Applicant and I continued kissing in a very passionate manner. We moved virtually attached around the corridor nearest to the office door entrance. I recall the Applicant then began to strip and unbuckled my belt and trousers whilst still kissing. That continued for the next few minutes until the Applicant was completely naked. I don’t recall how she did it but she had nothing on other than her knee high boots and a necklace. She was kissing and touching me all over. Further, the Applicant was walking up and down the corridor in a dancing like manner, simulating erotic dancing. That went on for a few minutes. I then remember needing to go to the toilet urgently to urinate as I had waited a little too long (before going to the toilet) while watching the private show the Applicant (my boss) was providing for me. I stood at the urinals and after a few minutes went back to the corridor.
349 Mr Vergara then deposed that as he came out from the toilets, Ms Ewin was getting dressed and with great concern said words to the effect that she needed to get her laptop from the Insignia Bar. She said they should quickly get out of there and go back to the Bar. Mr Vergara’s evidence was that Ms Ewin was “virtually racing” back to the Insignia Bar most concerned and saying that Mr Newton would kill her if she lost her laptop.
350 In his record of interview with police, Mr Vergara said that once they got to the building where the LLA offices were located they went upstairs to LLA’s level. He said, “There was a bit of carrying on, in terms of amorous activity between [Ms Ewin] and I”. He described them as “two adults”. He said, “There probably was sexual activity, and that’s as far as I can remember… I mean, there is nothing more to say… there was two consenting adults…” Mr Vergara said that Ms Ewin took off all of her clothes and that she only had on her boots. He said he probably had taken off some clothes as well. Asked what happened after the clothing was taken off, Mr Vergara said that there was “some carrying on, sexual activity, but that’s all I can remember”. Asked to explain “carrying on”, Mr Vergara said, “kissing, cuddling, caressing… what else do people do? Two consenting adults?” Asked whether he penetrated Ms Ewin with his penis, Mr Vergara said that he had been thinking about that since he was rung by police that morning and “I can’t say that I did”. He said that he was probably struggling to have an erection. He did not know whether it was possible whether he had penetrated Ms Ewin with his penis. He said he could not remember that part. Asked how he could recall that he was struggling to get an erection, Mr Vergara stated that he had not previously said that he was struggling to get an erection. Mr Vergara denied penetration with an object or with his hand. He emphasised that it was “two consenting adults” engaged in the activity. He described himself as “very drunk”. Asked later what state he thought Ms Ewin was in, Mr Vergara responded that she was drunk. Asked if he believed whether Ms Ewin was actually able to consent, Mr Vergara said:
I think you’re just speculating with that comment. I – I’ve got no idea what – we were two animals. I said we were just – both havin’ a drink. She was – if I was saying to you she was running up a – running around, up and down, with her boots on, making a point of it and you tell me if she was able to consent.
351 Mr Vergara was then asked what his prior relationship was with Ms Ewin to which he answered that they had a close relationship. When asked had he ejaculated, Mr Vergara said that he didn’t think so because he was quite drunk and that can be difficult.
352 Later in the record of interview, Mr Vergara was asked questions by reference to the content of the pretext conversations to which I will shortly refer in more detail. He conceded that he had an erection at times. He was asked to undergo a forensic procedure in order to obtain his DNA. He was told that the police had obtained seminal fluid. Mr Vergara volunteered that the semen found was probably his. He said a number of times, that he was not denying that there was sexual activity. However, he did not concede sexual penetration. He asserted throughout that the activity engaged in was engaged in by two consenting adults. As to his memory of the night he said that he did not recall everything that had occurred but he did remember quite a few “bits and pieces”.
353 In the first pretext conversation, Mr Vergara was initially non-committal in relation to whether there had been any penile penetration by him of Ms Ewin on 15 May. He agreed that it was possible but could not “confirm or deny” because he was “pretty pissed”. Initially he could not recall if a condom was used but later in the conversation confirmed there was no condom in the office because he is married and does not carry them. As the conversation developed, Mr Vergara was more prepared to accept that there had been penetration but was fairly confident that he had not ejaculated. The following exchanges are illustrative of Mr Vergara’s position as he put it at that time:
V: The only – the only thing is that I sort of remember a bit, I can’t, I can’t remember ejaculating, OK? I, I can’t. Because I was so drunk, I can’t remember that part, and I’m not sure whether or not that happened, OK?
…
E: So you think, you think you pulled out. Is that what you’re saying?
V: What I’m saying is that I don’t remember ejaculating.
E: OK. So you do remember vaginal penetration?
V: I think that, that was a possibility, yes.
354 Mr Vergara explained in that conversation that his confidence that he had not ejaculated was based on his experience that normally once he ejaculates he loses his erection. His said his recollection was that he had an erection for an hour or two after the sexual activity. He said, “I can remember going all the way home and having a bloody hard-on all night… that is clear in my mind”.
355 There was extensive cross-examination of Mr Vergara in relation to the nature of the activity engaged in by he and Ms Ewin at the LLA office. Mr Vergara steadfastly refused to concede that the activity included sexual penetration. He was taken to his comment to police that “we were two animals”. He said he had used the wrong words and that the reference was “a slip of the tongue”. What he intended to say was “two consenting adults”. He acknowledged that “kissing, cuddling, caressing” was not being an “animal” but denied that anything in his behaviour that night was animal behaviour.
356 Mr Vergara conceded that he had an erection whilst at the LLA office. He denied that he had an erection all night and explained his remark to that effect in the first pretext conversation as “just a matter of speech”. Mr Vergara also sought to resile from his statement in that pretext conversation to the effect that penetration was a possibility. He said that when he answered that question he was “confused, misled and tricked” and that his statement was true “in the context” of him trying to help Ms Ewin and being confused.
357 Mr Vergara was taken to his rhetorical question which he posed and answered in his record of interview, as follows:
Was this consensual sex [?] I’m telling you it was.
358 To the suggestion that “consensual sex” involves penetration, Mr Vergara responded that it did not necessarily. He denied using that term in the record of interview as a reference to sexual penetration. Mr Vergara agreed that he had conceded to police that the semen found by police was probably his semen. He nevertheless insisted in cross-examination that he was certain that he had not ejaculated.
359 In cross-examination, Mr Vergara accepted that his swipe card was used to access the lifts to the building in which the LLA offices were located. That occurred at 10.40 pm and Mr Vergara deposed that he and Ms Ewin went up to the 13th floor where the LLA offices were situated. He said that the use of a swipe card was not necessary for exiting the building. No record of exit was tendered.
360 After leaving the lifts, Mr Vergara said that there was passionate kissing and he and Ms Ewin moved into the corridor at the entrance to the LLA office. Ms Ewin began to strip and was unbuckling his belt and trousers while still kissing him. That went on for a few minutes. Ms Ewin was completely naked other than for her boots and her necklace. Ms Ewin was kissing and touching Mr Vergara all over and was also dancing up and down the corridor. That took a few minutes. The next thing that happened according to Mr Vergara was that he needed to go to the toilet. Mr Vergara acknowledged that took a few minutes. By the time that Mr Vergara returned, Ms Ewin was dressing and saying that she had to quickly go back to the Insignia Bar to get her laptop. Mr Vergara deposed that they left and Ms Ewin was “almost power walking” to get back to the Insignia Bar before it closed.
361 Earlier in his cross-examination, Mr Vergara accepted that he and Ms Ewin had returned to the Insignia Bar by “about 12-ish”. It was put to him that on his evidence of the activity and the time that it took, he and Ms Ewin must have left the LLA office area before 11 pm. He was, in that context, asked to explain what happened to the other hour prior to the return to the Insignia Bar which he had suggested occurred at about 12-ish.
362 To that proposition, Mr Vergara initially responded that his evidence-in-chief was that they had returned to the Insignia Bar “about 11-ish”. Mr Vergara had not given any time in his evidence-in-chief. He was reminded that both in his record of interview and earlier in his cross-examination he had said that he and Ms Ewin had returned to the Insignia Bar at about 12-ish. He acknowledged he had said that, but now insisted that he and Ms Ewin had returned to the Insignia Bar “not much after 11”. When it was suggested to him that he had never before suggested that to be the case, he deposed that he had come to that conclusion in the prior six months and that he had told that to his wife. He could not explain why that conclusion did not appear in his witness statement.
363 On the evidence he gave, Mr Vergara was unable to account for about an hour of time between arriving at the LLA office building at 10.40 pm and shortly after 12.00 am on 16 May which, I am satisfied is the time that Mr Vergara and Ms Ewin are likely to have arrived at Southern Cross. Mr Vergara accepted in cross-examination that he and Ms Ewin arrived at Southern Cross at 12-ish. He accepted that he had told police that he and Ms Ewin took the shortest route of about 70 metres between the LLA office building and the Insignia Bar. He had said to police that Ms Ewin was racing. He accepted that he had told police that it was about a fifteen minute walk between the Insignia Bar and Southern Cross. In cross-examination, Mr Vergara deposed that on this occasion the walk took “maybe half an hour”. When it was pointed out to Mr Vergara that even on that evidence he and Ms Ewin would have left the Insignia Bar at about 11.30 pm and that there was still a half-hour unaccounted for, Mr Vergara said that he did not know why that was so and that he had been under the influence of alcohol.
364 Mr Vergara’s cross-examination in this respect was directed to establishing that Ms Ewin and Mr Vergara had stayed at the LLA office for significantly longer than the twenty minutes or so suggested by his evidence. I accept that to be the case. The evidence strongly suggests that Mr Vergara and Ms Ewin were at the LLA office for at least an hour. As well as the evidence already referred to, the conclusion I have reached is also supported by the evidence of Ms Tsafanos. In her statement to police, Ms Tsafanos said that Mr Vergara and Ms Ewin returned to the Insignia Bar “around midnight” but accepted that it could have been half an hour earlier. Ms Ewin’s recollection of the time shown on a video display at Southern Cross and the evidence of the time she arrived home (to which I will later refer) is confirmatory of the likelihood that Mr Vergara and Ms Ewin were at Southern Cross shortly after 12.00 am.
365 Mr Vergara was also cross-examined as to what Ms Ewin was wearing and how it came to be that she had her pants off but her boots on. He recalled that Ms Ewin was wearing white trousers or white jeans but he could not be more specific. Mr Vergara was shown the boots which Ms Ewin deposed that she had been wearing on 15 May. It was put to Mr Vergara that it would not have been possible for Ms Ewin to get her jeans off over the boots. He said he did not know how Ms Ewin had done that. He was not sure whether Ms Ewin took her boots off first and then put them back on. He insisted that Ms Ewin was kissing him throughout while she undressed him and herself.
366 The location of the sexual activity engaged in between Mr Vergara and Ms Ewin is relevant to the issue of whether the conduct occurred at the “workplace” of Mr Vergara and Ms Ewin. Mr Vergara deposed that the activity occurred in the area between the lifts and the entrance to the LLA office. A corridor leads to that entrance. Mr Vergara’s evidence was that he and Ms Ewin did not enter the LLA office. It was suggested to Mr Vergara in cross-examination that the activity had occurred in the LLA office and not simply between the lifts and the front door.
367 In his record of interview, Mr Vergara was asked where exactly in the office the incident occurred. He said that he and Ms Ewin didn’t get as far as walking into the office. He said they were in the corridor before you get to the office. He accepted that he had a key and could have accessed the office but maintained that he and Ms Ewin did not go into the office.
368 In the first pretext conversation, there was a suggestion put to Mr Vergara that the activity occurred at or about the front door of the LLA office to which Mr Vergara does not respond. I do not regard that evidence as being of any assistance. Nor do I regard various statements made in passing by Mr Vergara that the activity occurred in the “office” as helpful. In context, the word “office” is capable of being utilised to mean the building, or the floor on which the office was located including a common area such as a corridor.
369 Mr Vergara had no incentive to locate the activity in the corridor rather than in the office proper at the time that Mr Vergara was interviewed by police. In my view, the answers given by him at that time on that issue are likely to have been truthful. I find that the activities engaged in by Mr Vergara occurred in the corridor between the lifts and the front door of the LLA office.
Return to the Insignia Bar and later events that night
370 In her evidence-in-chief and having identified her last recollection at the Insignia Bar, Ms Ewin said that her next recollection was being back at the front door of the Insignia Bar on Flinders Street. She recalled seeing two bar staff through the window, one was a woman. The woman handed Ms Ewin her things. The woman told her that her wallet was on the bar and that her friends had left her things behind the bar. She recalled that she was given her laptop bag, her black scarf, her black trench coat and her black handbag and red wallet. The red wallet and the handbag were separated.
371 She was then asked to give her next recollection. She said that her next recollection was standing at the overpass platform at Southern Cross looking at the train timetable on the video display. She recalled that the video display said, “12.18. No trains”. Ms Ewin had no recollection of her journey from the Insignia Bar to the video display at Southern Cross.
372 When asked whether she recalled whether Mr Vergara was there, Ms Ewin said that when she was being handed her things outside the Insignia Bar, she recalls that Mr Vergara was to the side standing with his backpack about a metre and a half away. In cross-examination she said she recalled Mr Vergara was standing to her right some one and a half to two metres away in front of “Gurkha’s Sri Lankan Restaurant”. When she was at the top of the platform looking at the video display, she recalled that Mr Vergara was a metre or a metre and a half away just standing there with his backpack. Her evidence was that there was no conversation.
373 Ms Ewin’s next recollection was of getting into the backseat of a taxi closing the door and seeing Mr Vergara through the car door window standing there with his backpack. She recalled this occurring on the corner of Collins and Spencer Streets. She deposed that at the time she was feeling foggy, sick and dizzy. In cross-examination, Ms Ewin said that she placed herself in the taxi without assistance from Mr Vergara. She communicated her home address to the taxi driver.
374 The taxi took Ms Ewin home where she paid for the taxi fare. She recalled arriving home at 12.40 am. Ms Ewin produced a Cabcharge invoice showing a pickup from Southbank and a destination consistent with the suburb in which Ms Ewin lived. The receipt bears a time of 12.41 am. The date shown is for May of 2009 but the particular day in that month is obscured. I accept that the receipt is the receipt provided to Ms Ewin for the taxi journey between Southern Cross and her home in the early hours of 16 May.
375 When Ms Ewin entered her home, she deposed that she just sat on the couch. She felt dazed, numb, giddy and confused. She stated that she felt “as if I had pain in my body”. She thereafter went to bed. She gave no evidence of any interaction with her husband other than that he was already in the bed which she got into.
376 Ms Ewin’s evidence was consistent with the account given in her statement to police as to her recollection of events between returning to the Insignia Bar and getting into bed at home.
377 In his witness statement, Mr Vergara said that when he and Ms Ewin arrived back at the Insignia Bar all the doors were closed but that staff were still inside tidying up. He said that he recalled Ms Ewin knocking quite hard on the window and signalling that she had left her laptop at the Bar. He said that a person from the Bar noticed Ms Ewin and opened the door, let Ms Ewin in and gave Ms Ewin her laptop bag and other items.
378 Mr Vergara deposed that he and Ms Ewin then headed up King Street towards Collins Street. During that walk he and Ms Ewin stopped and kissed intermittently, laughing and giggling and “talking stupidity” along the way. When they got to Collins Street they turned left towards Southern Cross. He deposed that on several occasions on the walk from the Insignia Bar to the train station, Ms Ewin asked him if they could stay the night together to which Mr Vergara claimed he replied that he was sorry that he couldn’t stay with Ms Ewin and that he had to get home.
379 On arrival at Southern Cross, Mr Vergara said they walked in and around until Ms Ewin had concluded that her train services had ended for the day. They then walked back outside of the train station and waited for the next available taxi at the taxi rank. He deposed that Ms Ewin “kissed me passionately and held me from my crotch” and asked him to stay the night with her to which he replied that he would not and had to get home. In the following few minutes a taxi arrived, Ms Ewin stepped into it said goodbye and left. Mr Vergara deposed that he waited around for a further minute or so before catching the next taxi home.
380 I have already referred to the evidence given by Ms Tsafanos, some of which dealt with what she observed on the return of Mr Vergara and Ms Ewin to the Insignia Bar.
381 Ms Ewin deposed that on Saturday 16 May she woke up at her normal time, 7.30 am. She felt as though she had whiplash in her neck, her back and her shoulders were aching. She noticed she had extreme muscle stretching and pain on the insides of her inner thighs. She had deep penetration feelings in her vagina and her anal cavity. She was also bleeding from her vagina, it was burning and there was semen present in her vagina.
382 Ms Ewin got out of bed and had a shower and sat on the couch. She made an appointment with Dr Conlan her chiropractor. She wanted him to try to fix the whiplash sensation she was experiencing and her sore back. She did not feel that she was capable of driving and her husband drove her to the appointment which took place just before midday.
383 In her statement to police, Ms Ewin said that she felt dazed all day and that she was in extreme pain with significant bruising to both of her knees. She said that both of her outer thighs were covered in small dotty bruising. She told police that her neck felt like it had whiplash. She said that she saw Dr Conlan that day.
384 The description given to police by Ms Ewin in relation to those of her injuries beyond the bruising and the whiplash was more detailed and somewhat different, but not necessarily inconsistent, from that given in her evidence. She told police that she felt a muscular pain inside her consistent with deep penetration. She said the outer lips of her vagina were red raw. She said she felt like the skin had been rubbed away around her vagina, like it was torn and burning. She told police the pain lasted a week. Her inner thighs and hipflexa muscles were “absolutely stretched”. She said, “I had muscle stiffness and soreness to the point where I had trouble walking”. Ms Ewin’s statement to police made no specific mention of penetration feelings to her anal cavity, although she said she had muscular pain “inside me consistent with deep penetration”. There was no reference to any bleeding from the vagina or that she had noticed the presence of semen in her vagina.
385 Ms Ewin deposed that she attended Dr Conlan’s practice but gave no further account of what transpired. Her attendance occurred shortly after midday. In cross-examination, Ms Ewin said that Dr Conlan was her chiropractor whom she had seen on many occasions since 2005. She said that at the appointment on 16 May she showed Dr Conlan her bruises. She said that she disclosed to Dr Conlan that she had bruising and showed him her knees.
386 There is some inconsistency in Ms Ewin’s evidence as to whether she recalled falling on the evening of 15 May. She deposed that she had no recollection of falling. However, in her conversation with Nurse-On-Call, Ms Ewin initially said that she went to a chiropractor over “a vertebrae in my neck where I fell”. Later when the nurse asked whether the chiropractor knew she had been sexually assaulted Ms Ewin replied, “No, I just told him I fell over”. In her statement to police and in reference to Dr Conlan, Ms Ewin said, “I showed him the bruising and assumed I’d had a fall”. Cross-examined about what she had told Dr Conlan about a fall, Ms Ewin said that her assumption on the Saturday morning was that she must have fallen.
387 Dr Conlan was called to give evidence. A report prepared by Dr Conlan and dated 7 December 2012 was tendered. Dr Conlan said that Ms Ewin attended the chiropractic centre in which he worked at 11.45 am on 16 May. By reference to notes taken by him that day, Dr Conlan reported that he treated Ms Ewin for an injury to her neck and upper thoracic region. Palpation of the affected region revealed tenderness to the muscle and transverse processes of Ms Ewin’s neck at the joint levels of C3, C4, C7 and T1. Dr Conlan noted mechanical dysfunction, which is the presence of abnormal movement, at those particular intervertebral joint levels. In Dr Conlan’s opinion, Ms Ewin had joint disturbance at those joint levels at the time she presented on 16 May. He described those injuries as being injuries which could easily have occurred in a physical assault. In his oral evidence, Dr Conlan said that Ms Ewin’s presentation on that day was consistent with an acute onset of physical trauma. By “acute” he explained that he meant that the physical trauma was recent although he could not have known whether the trauma occurred one hour earlier or 48 hours earlier.
388 In both his report and his evidence, Dr Conlan deposed that he recalled discussing with Ms Ewin how she came to have the injury that he observed. He said that Ms Ewin complained to him of pain and stiffness to her right neck and shoulder regions which had occurred as a result of a sexual assault. Dr Conlan’s report noted that Ms Ewin had tried to explain how the injuries had occurred. He said her explanation of the mechanism of injury was difficult to understand and quite incoherent. Ms Ewin told Dr Conlan that the injury occurred the previous evening and Dr Conlan distinctly recalled her mentioning a sexual assault. He said that otherwise, Ms Ewin was unable to make herself understood. He observed that she was plainly very upset and appeared traumatised in her presentation. In oral evidence, Dr Conlan said that on 16 May, Ms Ewin was in an agitated and disturbed state. He described her as very distressed. He said that whilst it was very difficult to get clarity from Ms Ewin, she described to him, in amongst a series of sentences, that her injury had occurred as a result of a sexual assault.
389 Dr Conlan was cross-examined about his recollection of what he had been told by Ms Ewin. There was no reference to a sexual assault in Dr Conlan’s notes taken on the day that Ms Ewin presented and Dr Conlan accepted that he typically saw 100 to 125 patients in any given week. Dr Conlan nevertheless insisted that he had a specific recollection that Ms Ewin had told him that her injuries occurred as a result of a sexual assault. He said the occurrence stayed in his memory because of its rare nature. He had no recollection of any other patient having made a complaint of the same kind. He recalled discussing Ms Ewin’s attendance at his practice during a telephone call initiated by Constable Hillary Wardman. He recalled informing Constable Wardman that Ms Ewin had told him that she had experienced a sexual assault on the day prior to his consultation with her on 16 May. Dr Conlan was unable to say when that conversation occurred. Other evidence before me shows that Constable Wardman was involved in the investigation of the complaint of rape made by Ms Ewin. An earlier report made by Dr Conlan on 29 November 2011 also refers to Ms Ewin attending on 16 May for injuries subsequent to a sexual assault she described as having occurred on 15 May.
390 Lastly, Dr Conlan deposed that he could not recall Ms Ewin showing him bruising to her arms, her armpits, her thighs or her knees. Nor could he recall seeing any marks on Ms Ewin’s face.
391 At 5.14 pm on 16 May, Ms Ewin emailed Mr Newton with a two page attachment which she described as the “detailed split of the Corp GLA accounts”. Ms Ewin was cross-examined about the email. She confirmed that to send the email she had to connect to the office server and then log in. She said the document had taken about 5 minutes to prepare. She was not otherwise asked as to the extent of any work performed by her on that day.
392 At 9.40 am on Sunday 17 May, Ms Ewin contacted Nurse-On-Call. The Nurse-On-Call conversation is significant in a number of respects. It is convenient that I provide a short sequential summary of those parts of the conversation which appear to me to be of most relevance. To a limited extent exchanges already referred to earlier are repeated. To the extent that the content of the conversation and listening to Ms Ewin’s voice has enabled me to make an assessment of her state of mind at that time, I would describe Ms Ewin as being emotional, struggling to maintain her composure and somewhat distressed. In conversation, Ms Ewin was mainly coherent and responsive.
393 The conversation began with Ms Ewin identifying that she was seeking information about taking the morning-after pill because of something that happened to her “at a Friday night work’s thing”. She indicated her preference to remain anonymous. When asked how old she was she gave her age as 30. Ms Ewin was then asked, “What happened?” She said that there was a new person who had started at work who reported to her, who was older than her and said:
Um, on Wednesday he just said, “I’m totally in love with you, I need, I need to have you physically” and I said, “I don’t think that’s appropriate” um, “you’ve got a wife and family and you work for me as a temporary worker”.
…
Um, and that was the end of the conversation and he tried to kiss me and I said “that’s not appropriate” and I didn’t go and report it anywhere but then they had work drinks on the Friday night and I said um, we had work drinks at the pub and I said um, “I’m going to say goodbye to people” and said, “listen, I’m just going to grab my laptop and I’m going home”.
…
And he said “oh look I’m leaving too” and um yeah it was aggressive and um yep I’m covered in bruises, um…
394 The nurse then asked Ms Ewin whether she was physically assaulted. Ms Ewin answered, “Yes, he penetrated”.
395 I should interpose to say that Ms Ewin did not refer to Mr Vergara by name at any point in the conversation. However, she made a number of references to the person whom she alleged had sexually assaulted her throughout the course of the conversation. In doing so she gave a description of the person, his family, his work and his involvement in some of the various events to which I have earlier referred. I am satisfied by reason of those various descriptions that the person that Ms Ewin clearly had in mind was Mr Vergara.
396 The nurse then asked Ms Ewin whether she had reported the assault. Ms Ewin said that she had not and did not want to although she was not sure. At that point the nurse made the first of many expressions of encouragement for Ms Ewin to report the assault to authorities. Throughout the conversation the nurse also expressed her anger and her abhorrence at the possibility that the perpetrator will escape being dealt with for the conduct alleged by Ms Ewin. I should also mention that the word “rape” or the phrase “sexual assault” was not at any time used by Ms Ewin, but after Ms Ewin said that the person physically assaulted and penetrated her, the unspoken assumption upon which the conversation thereafter continued was that Ms Ewin has been the subject of a sexual assault involving penetration.
397 The nurse referred to the need for Ms Ewin to be tested for sexually transmitted diseases. Ms Ewin stated that she had actually thought about that and indicated her concern.
398 Ms Ewin was asked whether she expected the man to turn up for work on Monday. She replied that she did not know, that he said he is happily married, that he’s got a wife and three children. She said, “This is not appropriate, this doesn’t happen in the corporate world, well, well it happens… well I was gonna say, it’s not ever happened to me”.
399 The nurse then made an observation about life to which, in an unresponsive way, Ms Ewin replied with the following:
I just said to him, “I don’t choose for this to happen, I choose for you to leave”.
400 Urged by the nurse to speak to someone about what had happened to her, Ms Ewin responded that she didn’t want to talk to anyone about it and she just wanted to deal with the risk of being pregnant.
401 The nurse then began questioning Ms Ewin, including as to any medications she was taking. Ms Ewin confirmed that she had bruising and was asked about any other injuries. Ms Ewin did not identify any other injuries other than injury to the vertebrae in her neck. At that point she mentioned that she went to the chiropractor regarding her “vertebrae in my neck where I fell”. She was asked whether she felt like she was in shock, to which Ms Ewin responded she was hot and cold.
402 Ms Ewin was then asked whether she had lost consciousness at all during the assault. To that she paused and then said, “There’s blank bits”. She was asked whether she had hit her head to which she replied, “No... Just got a fat lip”. Asked about vaginal haemorrhage bleeding Ms Ewin replied, “Yeah, just a little”.
403 Responding to further questions from the nurse, Ms Ewin then said that she lived with her partner and that he did not know and that she did not know what he thought may have happened to her. When asked if she felt confused or disorientated, Ms Ewin said, “Somewhat”.
404 The nurse then advised Ms Ewin that if she did decide to report the incident, a forensic examination for semen would not be useful after 72 hours.
405 The nurse again referred to the possibility of Ms Ewin being in shock and asked whether Ms Ewin was hearing or seeing things at that time. Ms Ewin replied that she was not. As to how she felt, Ms Ewin mentioned her body temperature and that she was experiencing “that horrible yuk, bodily gut yuk”.
406 Ms Ewin was asked whether she had a supportive partner to which she said yes, but that he would not understand and she knew that he could not cope. She said that he had been raised too strictly and “just couldn’t possibly envisage how that could be”.
407 Ms Ewin was then asked about her family and the conversation returned to the morning-after pill. She was told she had plenty of time to take the pill. Again she was asked if she wanted to report the incident. Again Ms Ewin said she wanted to sort out what she described as the “physical” first. It is apparent that she was talking about the chance of a pregnancy.
408 The nurse said to Ms Ewin that she was currently going through shock but that she thought that anger would soon set in. Ms Ewin replied that she thought the anger was starting. To that the nurse made a number of further comments emphasising her own anger with the perpetrator. The nurse then asked Ms Ewin whether she had been exposed to any sexual assaults in the past to which Ms Ewin replied that she had not. There was then some further conversation in which the nurse communicated information about the morning-after pill. The conversation then returned to the need for Ms Ewin to be screened for STD’s. She was told by the nurse that that had to happen now, to which Ms Ewin replied, “Yuk”. Ms Ewin was then given information about the Centre Against Sexual Assault (CASA) and in relation to a sexual assault crisis line.
409 Apparently reading from information before her, the nurse said that around 25% of Australian women will be sexually assaulted in their lifetime. To that Ms Ewin replied, “It’s awful”. Ms Ewin agreed with the nurse’s comment that it was disgusting and thereafter the following conversation occurred:
Ms Ewin You’re raised with the words “I choose”
Nurse Sorry?
Ms Ewin You know, I was raised with the word “I choose”
Nurse Yes
Ms Ewin And that’s all I can hear
Nurse Is it? Yeah
Ms Ewin I choose
Nurse Mm
Ms Ewin And I do not choose this
Nurse No, that’s right and you know it was all about what he wants
Ms Ewin Oh god yeah
410 The nurse then suggested that when Ms Ewin got stronger she should let “that anger work for you” to which Ms Ewin said, “Yeah”.
411 The nurse then made some further observations about life in which she mentioned that Ms Ewin had a good job. That seems to have triggered an exchange (much encouraged if not led by the nurse), in which Ms Ewin began to wonder whether what had happened to her was job related, scripted and premeditated.
412 The nurse then again encouraged Ms Ewin to go to the police she said that she wondered whether this guy (the perpetrator) was sitting at home worrying about the police about to knock on his door or thinking that he got away with it again. To that Ms Ewin replied that it would be the latter, suggesting that would be so because he was “too arrogant… Untouchable… And Squeaky clean”.
413 There then followed the exchange I have earlier referred to where the chiropractor was again mentioned and Ms Ewin made the comment that she just told the chiropractor that she had fallen over.
414 In response to the nurse saying that “this” would make Ms Ewin stronger, Ms Ewin said, “Wiser”. Ms Ewin agreed with the suggestion from the nurse that the perpetrator may have done this before.
415 The nurse then mentioned that she had an 18 year-old daughter and expressed her fears about what may happen to her. Ms Ewin recounted an event that she said happened to her in Adelaide the previous May. She said that she went to Elizabeth and a taxi driver picked her up and took her to his house. She said that the taxi driver locked her in his garage. There was then quite some conversation mainly from Ms Ewin about that incident, much of it convoluted. Ms Ewin said that she was not touched but that she had spent about an hour and a half in the cab with the taxi driver and that he was talking about incest and was twisted.
416 The nurse again encouraged Ms Ewin to do something about what had occurred to her. She pleaded with Ms Ewin to not let “this man take anymore of you”. The nurse said she felt “that rage”. Ms Ewin responded:
Yeah, he said he’s been searching for an adulteress for a long time and I said, “I’m not your adulteress” and he’s just signed a six month contract.
417 Later in the conversation the nurse asked how Ms Ewin would cope given that the man was working a short distance from her. Ms Ewin replied that she didn’t know. The nurse asked about Ms Ewin’s boss and what “they” were like. Ms Ewin replied that it was pretty much a boys’ club. There was a secretary and herself and they were the only girls in a team of eight and it got worse when “this person joined”. She referred to her boss as “a jock”.
418 The nurse then expressed her hope that speaking with her had helped Ms Ewin. Ms Ewin said it had. The nurse said that she was “not trained in this in anyway”. Ms Ewin said she understood that and she just wanted to know about the physical side and as soon as she could sort that out she could feel “more like I choose”. She said, “I was raised with I choose… and you own your own choosing and if you make bad choices you stand up and you be accountable for your bad choices”.
419 The nurse then referred to the person having put at risk his own family on the Friday night. In that context, Ms Ewin referred to the person having “brought in all the photos and put the photos on his desk”. She referred to him as “Heckle, Dr Heckle and Jide or whatever”. Ms Ewin said her sense of trust felt eroded. She was again encouraged to “report it”.
420 Ms Ewin then whispered over the telephone that it had been 3 months since she had been married. Ms Ewin whispered that her husband was downstairs cooking a cake. She was asked whether he loved her. She said, “Oh to bits”. The nurse suggested that she “share this with him” to which Ms Ewin replied, “He can’t… That’s not something that person could ever cope with”. The nurse said that Ms Ewin needed to share this and that her husband would want her to, to which Ms Ewin said, “I have to gauge that space a bit more I think”.
421 As the conversation ended, Ms Ewin observed:
It’s funny you know, all I can smell is a particular smell and that makes me sick.
422 In her evidence-in-chief, Ms Ewin was not taken to the detail of the Nurse-on-Call conversation. She identified the call to have taken approximately 38 minutes. She said that she received instructions about the morning-after pill and where she could turn to for advice. She described her state during the conversation as “distressed”. She said that she had misstated her age and the length of her marriage because she wanted to maintain anonymity and because she felt ashamed, a feeling which she continued to have.
423 Ms Ewin referred to the Nurse-On-Call conversation in her statement to police. She said that she rang for information about the morning-after pill as she was certain she had been raped on the Friday evening by Mr Vergara. She indicated that her conclusion was based on Mr Vergara’s behaviour and what he had said to her on the night and also at work.
424 I have already referred to Ms Ewin’s cross-examination in relation to some of the exchanges in the Nurse-On-Call conversation. In cross-examination, Ms Ewin was also taken to the incorrect age and length of her marriage given to the nurse. Inconsistently with what she had said in chief, Ms Ewin said that she could not recall why she had given her age as 30 when she was in fact 36 years old at the time. Asked about why she had said, “I just said to him I don’t choose for this to happen, I choose for you to leave”, Ms Ewin said that she could not recall making that statement.
425 During the mid-morning on 17 May, Ms Ewin and her husband drove to visit Ms Ewin’s parents-in-law. During the course of the journey, Ms Ewin went to a chemist and purchased and took the morning-after pill. The receipt produced by Ms Ewin showed that the transaction occurred at 11.43 am.
Principal findings regarding the evening of 15 May 2009
426 It is convenient that I set out at this point, the principal findings that I have made as to what occurred on the evening of 15 May. Those findings are based on my assessment of the evidence given about the events of that evening as well as my assessment of the evidence of later events and communications including those in the weeks that followed, which I will shortly record.
427 I reject Mr Vergara’s evidence that Ms Ewin suggested they go out dancing as he was trying to leave the Insignia Bar and that Ms Ewin then engaged in passionate kissing with Mr Vergara. That evidence is inconsistent with the findings I have already made about Ms Ewin’s disinterest in Mr Vergara and her rejection of his sexual propositioning; it is inconsistent with Ms Thomas’ evidence that Ms Ewin and Mr Vergara were in heated argument at the Insignia Bar and that Ms Ewin was angrily resistant to Mr Vergara’s advances; it is also inconsistent with Ms Ewin’s evidence, corroborated by Ms Thomas, that she was physically unwell. Although Mr Vergara did say to police that there had been kissing at the Insignia Bar, I reject that evidence. No one gave evidence of seeing Mr Vergara and Ms Ewin kissing despite Mr Vergara’s claim that it lasted 5 to 10 minutes. Mr Vergara also gave inconsistent accounts of where the alleged kissing had occurred. His changed evidence as to the location was likely to have been given because Mr Vergara realised his earlier evidence was unlikely to be believed in circumstances where there were no witnesses who saw the alleged kissing. In my view, Mr Vergara’s evidence of Ms Ewin’s alleged intimacy with him at the Insignia Bar and his evidence that she suggested going back to the LLA office for privacy is false and forms part of the same fanciful construct that I have earlier referred to.
428 Consistently with the findings I have made about Ms Ewin’s resistance to the sexual advances made by Mr Vergara, I accept Ms Ewin’s evidence that she sought to avoid contact with Mr Vergara at the Insignia Bar. Those earlier findings and the findings just made are reinforced by the evidence given by Ms Thomas’ that during the evening, Ms Ewin made comments to her to the effect that Mr Vergara was a bastard and was behaving weirdly towards her and that he was arrogant and would never “have her”. Ms Thomas’ evidence tends to confirm Ms Ewin’s evidence that Mr Vergara continued to proposition her and told her at the Insignia Bar that she needed to address his sexual propositions and could not leave him “hanging”.
429 I accept Ms Thomas’ evidence, particularly as detailed in her statement to police. I find that Ms Ewin expressed to Ms Thomas during the course of the evening her anger and frustration with Mr Vergara’s sexual propositioning. By reason of the content of the conversations between Ms Ewin and Ms Thomas (including the conversation in the women’s toilet), I would infer that Ms Ewin was at that time of the view that Mr Vergara had sexually propositioned her in an aggressive and insistent manner and that she was vehemently resistant to engaging in any sexual activity with Mr Vergara.
430 I find, on the basis of the evidence given by Ms Thomas, that Mr Vergara and Ms Ewin were involved in an angry confrontation in which Ms Ewin remonstrated with Mr Vergara in the alcove at the rear of the Insignia Bar. I accept also that during that confrontation, Mr Vergara had his forearm across Ms Ewin’s body holding her against the side wall of the alcove. I appreciate that Ms Ewin did not give evidence that a confrontation in the alcove with Mr Vergara occurred prior to her being sick in the women’s toilets. Ms Ewin had a brief recollection of being confronted by Mr Vergara in the alcove as she came out of the toilets and just before losing her memory of further events for some two hours. I prefer Ms Thomas’ evidence including because any inconsistency is likely to be explained by Ms Ewin’s fragmentary loss of memory.
431 It is likely that the confrontation with Mr Vergara occurred late in the evening and not long before Mr Vergara and Ms Ewin left the Insignia Bar at about 10.30 pm. It is likely that the conversation between Ms Ewin and Ms Thomas in the women’s toilet occurred very shortly before Mr Vergara and Ms Ewin left the Insignia Bar.
432 I am unable to make any findings as to what if any conversation occurred between Mr Vergara and Ms Ewin which led to them leaving the Insignia Bar and heading to the LLA office, other than that I am satisfied that it is unlikely that Ms Ewin suggested going to the LLA office for sex with Mr Vergara. I am inclined to the view that Ms Ewin went back to the LLA office because of a mistaken or confused view that her laptop was in the office and that she would get it before heading home. I am so inclined for a number of reasons. First, I accept Mr Vergara’s evidence that he did not carry or otherwise physically transport Ms Ewin to the LLA office. The evidence does not suggest that Mr Vergara was capable of doing so nor does it support a finding that Ms Ewin was physically forced to walk to the LLA office. It is likely that Ms Ewin walked to the LLA office for a reason. As I have said, I reject that the reason was to go somewhere private to be intimate with Mr Vergara.
433 The reason that Ms Ewin went back to the office is somewhat suggested by her statements in the Nurse-On-Call conversation in the extract at [299]. There she said that as she was saying goodbye to her colleagues, she told them that “I am just going to grab my laptop and I’m going home”. If that account is correct, it is unlikely that Ms Ewin meant to tell those she was drinking with at the Insignia Bar that she was going to grab her laptop from beside the Chesterfield couch in the Insignia Bar some few metres away. That would have been an unusual and odd comment to make in the context of Ms Ewin telling her work colleagues she was going home. It was more likely that the comment was made in circumstances where Ms Ewin thought that her laptop was in the office. Given Ms Ewin’s state of intoxication it would not be surprising if she had become confused as to the location of her laptop.
434 I appreciate that in her evidence at trial, Ms Ewin had no recollection of that part of the conversation with the nurse. I take the view however that Ms Ewin’s recollection of what occurred on 15 May was likely to have been better on 17 May than it subsequently became. In any event, whilst I am inclined to think that getting her laptop was what motivated Ms Ewin to go to the LLA office and that Mr Vergara either followed her or went with her, I make no findings to that effect because despite the view I have expressed, the available evidence is insufficient for me to conclude that it is probable that Ms Ewin returned to get her laptop.
435 Whatever Ms Ewin’s reason for walking from the Insignia Bar to the LLA office, I am satisfied that her reason was not to find somewhere private to be intimate with Mr Vergara. I reject Mr Vergara’s evidence that Ms Ewin suggested they go back to the LLA office for that reason. That evidence was directly inconsistent with Mr Vergara telling police that there was no conversation or that he could not recall any conversation with Ms Ewin before leaving the Insignia Bar and that going back to the LLA office was responsive to the intuitive desire to find a private area. I am satisfied that it is unlikely that Ms Ewin willingly and consciously changed her vehement antipathy to sexual relations with Mr Vergara as expressed by Ms Ewin to Ms Thomas. It is unlikely that shortly after expressing that antipathy to Ms Thomas, Ms Ewin willingly communicated to Mr Vergara that she would welcome engaging with him in conduct of a sexual nature. It is also unlikely that she went to the LLA office for that reason.
436 I find that at about 10.40 pm, Mr Vergara and Ms Ewin came to the corridor on level 13 of 474 Flinders Street leading to the front door of the LLA office. It is not in contest and I find that whilst in and about the corridor, Ms Ewin was substantially naked and some of Mr Vergara’s clothing had been removed. Nor is it in contest that Mr Vergara was sexually aroused and had an erection whilst in or about the corridor. That there was sexual activity with Ms Ewin was acknowledged by Mr Vergara. What is in contest is the nature and extent of that activity. Mr Vergara’s account is that the sexual activity involved kissing, cuddling and caressing over some six minutes or so. Mr Vergara’s account did not suggest that sexual intercourse was not intended or anticipated by him. His account was to the effect that those intentions were interrupted and that the sexual activity was cut short.
437 Once the falsity of his evidence that he and Ms Ewin were only in the corridor for less than ten minutes is revealed and it is recognised, as I do, that they were there for over thirty minutes and more likely an hour, it becomes difficult to accept that Mr Vergara’s intent to have sexual intercourse was interrupted and that Mr Vergara did not have sexual intercourse with Ms Ewin. In my view it is likely that he did.
438 As I have found, in the previous days, Mr Vergara had communicated his desire to have sexual intercourse with Ms Ewin. In communicating that desire Mr Vergara was persistent and resolute to the extent that he seemed entirely oblivious to Ms Ewin’s rejection of his sexual advances. Mr Vergara was vigorous and aggressive in his desire to have sexual intercourse with Ms Ewin. It is likely therefore that whilst in the corridor with Ms Ewin, Mr Vergara was highly motivated to have sexual intercourse with Ms Ewin. He was also aroused having on his own evidence, kissed, cuddled and caressed Ms Ewin’s naked body. On the findings I have made, there was ample will, ample time and ample opportunity for Mr Vergara to have what he had so explicitly and relentlessly pursued. I am satisfied that in all those circumstances “a reasonable and definite inference” (Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278 at [34] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [37]-[38] (Weinberg, Bennett and Rares JJ)) may confidently be drawn that whilst in or about the corridor Mr Vergara had sexual intercourse with Ms Ewin.
439 That finding is supported by the fact that when Mr Vergara described to police the nature of the activities in which he and Ms Ewin had been engaged, he said they were “two animals”. In my view that comment was a slip made by Mr Vergara in what was otherwise an evasive attempt to avoid admitting to police that there had been sexual penetration. The comment reveals that the nature of the activities engaged in were vigorous and unrestricted. Mr Vergara’s vehement refusal to concede in cross-examination the act of penetration was equally unconvincing especially in the light of the first pretext conversation where Mr Vergara did not deny penetration, accepted it as a possibility and instead sought to cast doubt on whether he had ejaculated during intercourse.
440 The observations made by Ms Ewin when she woke up on the morning of 16 May also support the conclusion that on the previous evening Ms Ewin had been engaged in vigorous sexual activity including vaginal penetration. There is however some inconsistency between the evidence given by Ms Ewin and what Ms Ewin told police. In particular, Ms Ewin did not tell police that she had noticed the presence of semen in her vagina. As a result of those inconsistencies and because of my cautious approach to Ms Ewin’s uncorroborated evidence, I would not have found on the basis of Ms Ewin’s observations alone, that she had been vaginally penetrated on the night of 15 May. Nevertheless, Ms Ewin’s evidence serves to confirm my finding, arrived at by reason of other evidence, that Mr Vergara engaged in sexual intercourse with Ms Ewin.
441 Although Ms Ewin’s evidence of the physical observations made by her on the morning of 16 May suggested that anal penetration may have occurred, I do not find that it did. The evidence was insufficient to warrant such a finding.
442 Whether or not my finding of vaginal penetration is correct, that other sexual activity occurred is not in contest. On Mr Vergara’s evidence that activity involved kissing Ms Ewin and cuddling and caressing her. Given Mr Vergara’s description of the activity to police as “sexual activity” and “consensual sex” and that Ms Ewin was naked with him for over half an hour and that he was sexually aroused, I would infer that even if the activity did not include vaginal penetration, it involved Mr Vergara extensively touching and stroking Ms Ewin’s breasts and genitalia.
443 Mr Vergara was insistent both to police and also in his evidence that whatever occurred in the corridor occurred with Ms Ewin’s consent. The evidence upon which Mr Vergara relied to establish that Ms Ewin was a willing participant was firstly his evidence that she suggested they go back to the LLA office and secondly that whilst in the corridor Ms Ewin was an active participant passionately kissing, stripping, erotically dancing and touching him all over. I have already rejected Mr Vergara’s evidence that Ms Ewin suggested they go back to the LLA office. I also reject Mr Vergara’s evidence as to Ms Ewin’s activities in the corridor. Mr Vergara’s evidence that Ms Ewin was able to passionately kiss him whilst at the same time undressing himself and herself was not credible particularly given the difficulty involved in completely removing Ms Ewin’s pants without Ms Ewin first taking off her boots. I have already recorded my rejection of Mr Vergara’s contention that Ms Ewin came to the LLA office to engage in sex with him. I have found that shortly before she left the Insignia Bar, Ms Ewin was vehemently resistant to what she perceived to be Mr Vergara’s aggressive sexual propositioning of her. There is no basis for any suggestion that Ms Ewin’s strong antipathy to Mr Vergara had willingly or consciously evaporated or altered some half-hour later to the extent she became a willing participant in sexual activity with Mr Vergara, let alone an enthusiastic participant as Mr Vergara falsely sought to portray her. I have already found that Mr Vergara is not a credible witness and that he gave an untruthful account of the extent of the sexual activity that occurred at the LLA office and of the time involved. I reject the evidence relied upon by Mr Vergara’s to support his contention Ms Ewin was a willing participant in the sexual activity which occurred at the LLA office.
444 The false account given by Mr Vergara does not deny the possibility that Mr Vergara believed at the time that Ms Ewin was a willing participant in the sexual activity in which he engaged. That belief may have been based upon misconceptions driven by Mr Vergara’s heavily intoxicated state. Whether or not Mr Vergara believed that Ms Ewin was consenting to the sexual activity would clearly have been a relevant matter if Mr Vergara was here being prosecuted for the crimes of rape or sexual assault. Mr Vergara’s belief is not however a matter germane to the questions raised by s 28A of the SDA. The relevant issues for determination are whether the sexual conduct was unwelcome and whether, in all the circumstances, a reasonable person “would have anticipated” that Ms Ewin would have been offended, humiliated or intimidated.
445 I find that on 15 May, at or about the corridor outside the front door of the LLA office:
(i) Mr Vergara engaged in sexual intercourse with Ms Ewin; and
(ii) engaged in kissing Ms Ewin and touching and stroking her naked body including her breasts and genitalia.
446 I find that the conduct was conduct of a “sexual nature” within the statutory meaning of that phrase as contained in s 28A(1)(b) of the SD Act. As French J said in Hall v Sheiban at 283, unwelcome sexual conduct will clearly extend to acts which may also constitute offences and civil wrongs such as sexual assault.
447 For Ms Ewin to succeed it is also necessary that she establish that the conduct was unwelcome. Ms Ewin has the onus of proving that it was. The determination of that issue is directed to Ms Ewin’s state of mind at the time of the conduct. My rejection of Mr Vergara’s evidence that she had solicited the conduct does not satisfy that onus but, in my view, other evidence does.
448 There are only two possibilities available as to Ms Ewin’s state of mind. She either welcomed the conduct or did not welcome the conduct. If she was unable to welcome the conduct, in that she could not freely regard it as agreeable or desirable, then the conduct was unwelcome.
449 It is in this respect in particular that I need to consider whether and to what extent Ms Ewin was intoxicated at the time she was exposed to the sexual activity in question. If, as a result of being intoxicated, Ms Ewin could not have freely formed a view that the sexual activity was agreeable or disagreeable, then the conduct is to be regarded as “unwelcome conduct of a sexual nature” within the meaning of s 28A.
450 The evidence which I accept is that some forty minutes or so prior to the sexual activity, Ms Ewin experienced nausea, sweatiness, the room expanding and contracting, vomiting and very substantial amnesia. Fragmentary amnesia continued until after midnight and at that time Ms Ewin was still feeling foggy, sick and dizzy.
451 Ms Thomas observed Ms Ewin’s physical state when Ms Ewin was in the women’s toilets at the Insignia Bar. Ms Ewin was swaying and having difficulty standing, her eyes were a little glazed over and not focusing and Ms Ewin was slurring and mumbling her words.
452 A number of witnesses referred to Ms Ewin as being drunk. Those conclusions were not objected to by Mr Vergara. Indeed, that Ms Ewin was drunk was not a matter that Mr Vergara sought to put in contest. He himself gave evidence that Ms Ewin was drunk. He said that in the context of whether there had been conversations between he and Ms Ewin at the time they left the Insignia Bar and also in the wider context of the sexual activities which occurred later. Ms Thomas described Ms Ewin in the women’s toilets as “very out of it and quite drunk”. Mr Lowe described Ms Ewin as “babbling on about things and it seemed she’d had a few drinks to the point where she’d had too many to be driving home”.
453 Whilst I have been troubled by the lack of any expert evidence on the issue, I am, particularly where the issue was not put in contest, prepared to accept that the symptoms experienced by Ms Ewin are common and well understood reactions to intoxication and that Ms Ewin was heavily intoxicated from about 10 pm through to at least midnight on the evening of 15 May.
454 Whilst it is possible that Ms Ewin’s intoxicated state was caused by her unknowingly ingesting a drug, there is no evidence to support a finding to that effect. The evidence does suggest however that Ms Ewin had very firmly convinced herself that her intoxicated state had been caused by Mr Vergara spiking her drink. It seems to me that the pursuance of that resolute belief together with a not unnatural reluctance to concede that her own activities may have contributed to her inability to control what happened to her, likely have led Ms Ewin to believe that she had consumed far less alcohol than was the reality. Ms Ewin’s evidence, particularly as to how much alcohol she had consumed at the Aquarium function, was inconsistent with her evidence given at the hearing, her statement to police and her account given to Prof Dennerstein. In my view, it is likely that Ms Ewin underestimated the amount of alcohol that she consumed on the evening of 15 May. I do not regard her evidence in that respect as reliable.
455 The evidence of Ms Ewin’s hostility to the idea of engaging in sexual activity with Mr Vergara including her vehement rejection of the notion that Mr Vergara would “have her” sexually as expressed at the Insignia Bar, strongly suggests that any sexual activity with Mr Vergara would have been considered unwelcome by Ms Ewin while she was at the LLA office some half an hour later. The evidence gives rise to a reasonable and definite inference that Ms Ewin did not freely change her attitude to sexual activity with Mr Vergara between the Insignia Bar and the LLA office.
456 It is probable that Ms Ewin either maintained her antipathy to sexual activity with Mr Vergara or, because of her intoxication, Ms Ewin was unable to freely form a view to the effect that the conduct was agreeable or desirable to her. In either case, the conduct is to be regarded as unwelcome sexual conduct.
457 I should add that the heavy state of Ms Ewin’s intoxication, including that she was feeling ill and had vomited at the Insignia Bar, tends against any suggestion that by reason of her intoxication Ms Ewin had freely become more receptive to having sex. That Ms Ewin was suffering with her irritable bowel problem on that day and had taken medication for a condition which makes sexual activity unpleasant for her and also (by reason of the odour involved) potentially highly embarrassing for her, also does not suggest that Ms Ewin willingly and consciously became more receptive to having sex with anyone, let alone Mr Vergara.
458 The unwelcome sexual conduct was conduct which a reasonable person, having regard to all the circumstances, would have anticipated would offend, humiliate and intimidate Ms Ewin. Those circumstances included the rejection by Ms Ewin of each of Mr Vergara’s sexual advances, requests for sexual favours and other sexual conduct which I have found occurred in the preceding days. A reasonable person would have understood that “NO” meant “NO” and that Ms Ewin had no interest in engaging in any intimacy or sexual activity whatsoever with Mr Vergara. A reasonable person would have come to that understanding at least as early as 13 May at the Waterside Hotel when Ms Ewin rejected Mr Vergara’s explicit requests for sex. A reasonable person would not have required further confirmation of Ms Ewin’s antipathy to sexual relations with Mr Vergara. Nevertheless, further confirmation including further rejection of explicit requests for sex occurred on 14 May and on the afternoon of 15 May.
459 A reasonable person would have observed that Ms Ewin was heavily intoxicated whilst at the LLA office on the night of 15 May. Particularly in view of her previous antipathy to sexual relations with Mr Vergara, a reasonable person would have recognised that if Ms Ewin engaged in any conduct which suggested a change of attitude, that conduct would likely be the result of Ms Ewin’s heavily intoxicated state rather than any expression of her free and genuine intent to agree to engage in sexual activity.
460 In all those circumstances, a reasonable person would have anticipated a severe reaction from Ms Ewin to any sexual activity at all, including offence, humiliation and intimidation.
461 I accept that whilst at the LLA office, Mr Vergara was heavily intoxicated. It is therefore likely that Mr Vergara’s capacity to perceive the extent of Ms Ewin’s capacity to freely agree to sexual activity was impaired. Whilst generally speaking the obligation in s 28A(1) is to take into account all of the circumstances, the capacity to anticipate to which the provision specifically refers is not to be determined by imbuing the reasonable person with any incapacity to anticipate. It is the capacity of the reasonable person to anticipate which provides the standard by which the conduct is to be assessed. If the reasonable person was imbued with the anticipatory characteristics of the perpetrator of the conduct, the legislative intent to assess the conduct objectively by reference to the reasonable person would be compromised or entirely negated.
462 The criminal law exemplifies the contrasting relevance of the intoxication of the accused between offences where a subjective test for liability is to be applied and those involving an objective test. In sexual offence cases, a doubt may be cast upon an accused’s awareness that a complainant was not consenting by evidence that an accused was intoxicated: R v Costa (unreported, Court of Appeal of the Supreme Court of Victoria, Phillips CJ, Callaway JA and Southwell AJA, 2 April 1996); R v Egan (1985) 15 A Crim R 20; R v Wilson (1986) 42 SASR 203. By contrast, evidence of intoxication (or other impairment) will generally not be relevant where the test for liability is objective: R v Richards [1998] 2 VR 1; R v Lavender (2005) 222 CLR 67; R v Sam [2009] NSWSC 803.
463 The conduct in question occurred at or about the corridor at the entrance to the LLA office. The area was a common area of the floor on which the LLA office was located. For the reasons previously given, a common area such as that forms part of the “workplace” in which Mr Vergara and Ms Ewin worked. The fact that the activity occurred out of working hours or that attendance was not for a work related purpose, does not affect the corridor’s characterisation as the workplace of both Mr Vergara and Ms Ewin for the reasons I have earlier explained.
464 My satisfaction that Ms Ewin proved her case on the balance of probabilities included consideration of the matters specified by s 140(2) of the Evidence Act. I regarded the gravity of the conduct alleged as very serious. A high degree of moral opprobrium attaches to conduct of the kind alleged, although not nearly so much as would have attached to a rape or a serious sexual assault which involves an intent to rape or assault as a necessary element of the offence. Having regard to the seriousness of the conduct involved, I was satisfied that the strength of the evidence was sufficient to establish, on the balance of probabilities, that Ms Ewin had proved her case.
465 For all those reasons, I am satisfied that the sexual activity including the sexual intercourse which I have found occurred on the night of 15 May 2009 at the LLA office was conduct which contravened s 28B(6) of the SD Act.
466 A great deal of evidence was led on behalf of both Ms Ewin and Mr Vergara as to various events and communications which occurred after 15 May 2009. That evidence was led including for the purpose of proving or disproving the allegations of sexual harassment in the period 12-15 May. In making the findings I have made in relation to the period 12-15 May, I have taken into account, assessed and weighed in the balance the evidence of later events. Evidence of Ms Ewin’s conduct and communications in the period 16 -17 May was of particular relevance to my findings regarding the events of 15 May and has been set out together with those findings above. It is now necessary to record, to the extent I have not already done so, evidence from the period after 17 May.
467 Much of the evidence about this later period was concerned with the issue of whether or not Ms Ewin’s behaviour was consistent with her allegations that she had been subjected to sexual conduct of the kind alleged by her. Mr Vergara contended that Ms Ewin should be disbelieved because her later conduct was inconsistent with her allegations. That submission was largely based on Mr Vergara’s contention that if he had behaved as alleged, Ms Ewin would have reported his behaviour from as early as 13 May and taken corrective action against him, including by removing him from LLA. Mr Vergara contended that the fact that Ms Ewin took no action and instead continued to willingly interact with him should cause the Court to reject her allegations.
468 The extent to which the reporting of sexual harassment or assault is probative of whether the harassment or assault occurred is a difficult question, the answer to which will inevitably be given by the particular circumstances of the case. No assumption should be made that a failure to report a sexual assault is indicative of the assault not having occurred. There are many unsurprising reasons why sexual assault or other sexual conduct may go unreported. Some of those reasons were relied upon by Ms Ewin.
469 It is also necessary to consider the evidence in relation to the period after 17 May because Ms Ewin relies upon behaviour by Mr Vergara which she contended was consistent with her allegations.
470 Additionally, as a result of some claims made and some explanations given by Ms Ewin, the evidence of events post 17 May, like the evidence referred to earlier in relation to 16-17 May, has been relevant to my assessment as to the reliability of Ms Ewin’s evidence on particular topics.
471 I will begin by recording the evidence given and then follow by explaining the impact of that evidence upon the findings I have made.
The week commencing 18 May 2009
472 Ms Ewin deposed that she came to work on Monday 18 May. Mr Vergara was there. She recalled that he raised with Mr Lafferty and herself the prior Friday evening and asked how late people stayed and when they got home. She deposed that when she was alone with Mr Vergara he said that he had caught a taxi home and that he had stopped at McDonald’s to wash up and take in the moment that he had experienced, before he walked home to his wife.
473 Ms Ewin was asked to give her recollection of any statements or conversations of a sexual nature that Mr Vergara had with her between 18 and 27 May. Without identifying the specific date on which the conversations she recounted occurred, Ms Ewin said that in relation to the night of 15 May, Mr Vergara had said to her that he had a fantastic time and that they should organise to do it again sometime to build staff morale. Ms Ewin deposed that after saying that, Mr Vergara stood up and faced her and hitched up his pants and said, “I really liked that. I am going to get me some more of that”. Mr Vergara said to Ms Ewin that he had not walked into the office and over the office threshold without remembering what had happened and that doing so would never be the same for him again. He said that he was really going to love remembering in years to come that he had fucked the boss over the desk at LLA. Ms Ewin stated that he said to her that she was tight and that “it’s the strong ones who beg for mercy the most”. Asked if Mr Vergara had made any reference to her desk, Ms Ewin responded that he had said that he enjoyed the view from behind her desk over the skyline and had fond memories of fucking the boss over the desk at LLA. Asked whether any comments had been made about anatomy, she responded that Mr Vergara said that he had told her that he had a big dick and that she would like it and that she couldn’t say no.
474 Ms Ewin was not able to be specific about which comments were made on which days. She was not asked to be specific in her examination-in-chief and when asked in cross-examination about when in the week of 18 May she claimed Mr Vergara had made the comment that he would never walk over the office threshold and think the same again, she said that she could not recall what day of the week that occurred.
475 In response to a question as to how Mr Vergara’s comments had made her feel, Ms Ewin said that they made her feel sick. She also stated that she felt that Mr Vergara thought she was frightened of him, that he knew she had no memory of the event and that he enjoyed taunting her. The reason she regarded Mr Vergara as knowing that she had no memory was because she had told him so. On further questioning she explained that she had asked Mr Vergara what door she had left the Insignia Bar from and that Mr Vergara said they went out the side door. She asked him what they were doing out the front and how she got out the front, to which Mr Vergara laughed and said, “A little too much beer perhaps?”
476 Ms Ewin deposed that during the week of 18 May, she was feeling hunted, intimidated, frightened and sick. She said that during the week of 18 May and into the following week there was continued innuendo from Mr Vergara about what had happened on the Friday night. She deposed that she challenged Mr Vergara. She said she referred to what had happened on 12 and 13 May and on the prior Friday night and said to Mr Vergara that it was all planned. To that she said that Mr Vergara laughed and responded, “That’s why I told you on the Wednesday. I didn’t want Friday to be such a surprise”.
477 Ms Ewin deposed that she had spoken to Ms Thomas about the Friday night and told her that she did not remember leaving. She said that Ms Thomas noticed that she was distressed and had a fat lip. Ms Ewin said she asked Ms Thomas not to leave her in the office alone with Mr Vergara. Ms Ewin identified that as occurring in the week of 18 May 2009. Ms Ewin further deposed that from 18 May she tried to have someone accompany her so that Mr Vergara could not follow her to the train station. She deposed that she started walking to the train station with Ms Thomas, Mr Lafferty or Ms Chin. She said that Mr Vergara asked her, “Aren’t we friends anymore? Don’t you want to walk to the train station with me anymore?” She deposed that she told him that she did not.
478 Ms Ewin referred to events in the week of 18 May in her statement to police. She described Mr Vergara as making comments to her in that week that she characterised as almost deliberately drip feeding her snippets of information about the Friday night. In a number of respects, the account given by Ms Ewin to police differs from the evidence she gave. She said in her statement that Mr Vergara asked her what time she got home on Friday night. She said that she responded that he was at the station with her at 12.18 am when there were no Epping trains and that she had got home at 12.40 am as shown on her taxi receipt. She said to Mr Vergara that he was the last one to see her get into the taxi at Southern Cross. She said Mr Vergara replied, “Oh yes that’s right, good memory the trains were finished by then. I took a taxi and went to McDonald’s and then walked home. I just wanted to take in what had happened. Shame too much beer this time”. Ms Ewin’s statement to police records her response as, “I only had about four beers, middies not schooners and I did not drink wine or spirits that night, so not sure what you mean about too much beer”. She stated that Mr Vergara then said, “I will never walk over the office door threshold and think the same again about that Friday night”. Ms Ewin said that she did not respond but she stated that she was guessing by that time that “it” had occurred on the wooden floors at the office door, which [in her mind] explained why her knees were so bruised. She said that Mr Vergara said, “I really liked that, whew, and I am going have more of that. You were so tight”. Her statement records her response as, “You have got what you came here for. You fucked the boss at LLA. You got your scalp there will not be another time”. She stated to police that she needed to make clear to Mr Vergara that he may have done it once without her knowledge or consent but that he would never get a second opportunity.
479 Ms Ewin also told police that to piece together what had happened to her on the night of 15 May and to prove “I wasn’t frightened of him” she asked Mr Vergara some questions in the week of 18 May to get more information. She asked him to explain what she was doing outside the pub when she was handed her coat, laptop and handbag by the bar staff. She said Mr Vergara responded that they left through the side door.
480 Her statement to police also records that she said to Mr Vergara, after referring to Tuesday, Wednesday and the previous Friday night, that it all seemed rather premeditated like Mr Vergara knew that it was going to happen. To that she said Mr Vergara responded, “I just did not want Friday night to be a surprise that is why I told you about it on the Wednesday”. In her statement to police, Ms Ewin accused Mr Vergara of having premeditated the whole execution so that he got what he wanted without a fight.
481 Ms Ewin agreed in cross-examination that on 18 May, Mr Vergara handed back to her the t-shirt that she had won on the evening of 15 May. She said she did not recall having a chuckle with Mr Vergara and Mr Lafferty about Friday night and about the free t-shirt, as Mr Vergara sought to suggest. She agreed that she had attended a meeting with two individuals at the Aquarium. Ms Ewin also agreed that she had walked together with Mr Vergara to that meeting and said that she had done so as directed by Mr Newton.
482 In her evidence, Ms Thomas recalled that when she came into work on 18 May she noticed that Ms Ewin had a small mark on her lip. In her statement to police, she said the same. Ms Thomas described the mark as similar to a cold sore. She said that on the Monday afternoon Ms Ewin asked her about the Friday evening because Ms Ewin had no memory of it. Ms Thomas said that Ms Ewin asked her to wait around for her so that they could leave together. Ms Ewin had said that she did not feel safe with Mr Vergara.
483 Ms Thomas told police that on the Tuesday or the Wednesday, Ms Ewin was on her own in the office with Mr Vergara. She said that every time she went into Ms Ewin’s office Mr Vergara was on Ms Ewin’s side of the desk. From Ms Ewin’s body language she observed that Ms Ewin was not happy with that. Ms Thomas stated that she told Ms Ewin to let her know if anything was going on and she felt in any way threatened. Ms Thomas said she made a point of going into Ms Ewin’s office regularly to check on her. Ms Ewin told her that Mr Vergara had made sexual comments to her but she was unable to recall precisely what Ms Ewin had said. Her impression was that Ms Ewin was very threatened by Mr Vergara but was trying to appear strong so that he didn’t think that he had affected her. Ms Thomas said that “we” tried to look after Ms Ewin in the office and when she left the office. That evidence is supported by email exchanges of 25 May 2009 to which I later refer.
484 When asked in cross-examination whether Ms Ewin had informed her before or after 15 May of inappropriate comments made by Mr Vergara, Ms Thomas said that she thought it occurred both before and after although she could not say when. Asked what exact comments Ms Ewin told her that Mr Vergara had made, Ms Thomas said that Mr Vergara had told Ms Ewin he wanted her job and that he had also made inappropriate suggestions towards to Ms Ewin. Ms Thomas was unable to recall exactly what words were used. Pressed as to the description used by Ms Ewin and asked whether the words used were similar to “he’s annoying”, “he gives me the creeps” or “swear words”, Ms Thomas said “both”. Asked whether Ms Ewin ever discussed any injuries with her, Ms Thomas replied that Ms Ewin had said that she had a couple of bruises. She could not recall any discussion about the mark on Ms Ewin’s face and agreed that the mark could have been a cold sore. Ms Thomas also said that she was aware that Mr Lafferty walked Ms Ewin to the station a couple of times and that Mr Lafferty had told her that he was concerned for Ms Ewin.
485 Mr Vergara tendered the MPOL statement made by Ms Thomas. In that statement, Ms Thomas said that Ms Ewin had mentioned something to her before the incident on 15 May about Mr Vergara having said some things to her that seemed inappropriate. She said she didn’t recall exactly what had happened but got the impression that Ms Ewin was uncomfortable with what Mr Vergara had said and that Ms Ewin was not impressed with him.
486 Ms Thomas’ statement refers to conversations between Ms Thomas and Ms Ewin in the week or two after 15 May. The following is recorded:
The next week perhaps the end of the next week or two weeks later Jemma talked to me and said that she didn’t remember what happened during the night but that Claudio had been saying some vulgar things to her. He was suggesting that he had been with her that night. She said she had no recollection of this. She mentioned she had bad bruising, though I don’t recall where.
…
The first time I heard that something real and serious had happened was some time after the event and Jemma and I had a drink after work about a week or two later. She told me then that he had been saying that he did something to her that night and had made comments about what he had done.
487 In the MPOL statement, Ms Thomas also said that Mr Lafferty was aware of the comments that Mr Vergara had made. She said that at one point although she couldn’t remember whether it was before or after the incident, both she and Mr Lafferty walked Ms Ewin to the train station because Ms Ewin was concerned that Mr Vergara would be waiting for her.
488 Mr Lafferty’s evidence did not specifically deal with any events occurring in the week of 18 May.
489 In his witness statement, Mr Vergara stated that on the morning of 18 May he, Mr Lafferty and Ms Ewin spoke about the previous Friday night and that he handed to Ms Ewin the t-shirt that she had won as part of the beer promotion. He said there was some conversation about the t-shirt. Later that morning, when Mr Lafferty was out of the office, Mr Vergara deposed that Ms Ewin turned to him and said, “When are we going to continue our rendezvous and you still owe me a Latin dance?” Mr Lafferty came back into the room and the conversation ended. However later that afternoon when Mr Lafferty was again absent, Mr Vergara deposed that Ms Ewin turned to him and said, “What nights are you free for drinks and dancing this week?” To that he says he replied, “There will not be any of that ever again, we crossed the line and it will not happen again”. He stated that Ms Ewin again insisted that it was only a couple of drinks and dancing and asked what was his problem. He deposed that he responded, “Jemma, I am just not interested in that kind of relationship, the drinks and the massaging has to stop and there will not be any dancing”. He stated that Ms Ewin followed up by saying, “You my friend better watch yourself or else you’ll find yourself without a home or employment very soon”. She then said, “Hope you’re not thinking of kissing and telling around the office, are you?” To that he replied, “Most certainly not, as I said, it was a once-off and it will not happen again”. Mr Vergara deposed that Ms Ewin then said in a scary tone pointing to his face and eyeballing him at the same time, “I will get you, you remember these words”.
490 Mr Vergara deposed that at that point in time he felt most concerned including because he was concerned that Ms Ewin would contact his wife. He said that on one occasion that week Ms Ewin referring to his wife said, “Her name is Maria and you told me where she works, how hard can it be to find her phone number?”
491 Mr Vergara stated that on 19 May at Ms Ewin’s request, he sat with her and discussed the “inter-company matrix”. He claimed that Ms Ewin said that she was most impressed with how he had devised and implemented a system solution, that LLA had gone through so many incompetent contractors but that now LLA and herself were so fortunate to have Mr Vergara on board.
492 Mr Vergara stated that on 20 May, Ms Ewin asked him to contact an external consultant. He also said that on either 20 or 21 May the employees and contractors at LLA including himself and Ms Ewin walked to a nearby building to which the LLA office was to be relocated. He stated that the persons attending had a good look around at the new offices and discussed who was going to sit where. He recalled that he and Ms Ewin discussed how close the train line was in proximity to where her office was going to be positioned. Ms Ewin said that they would meet at his desk as it would be less noisy than her proposed office due to the trains going past.
493 Mr Vergara deposed that on 22 May, Ms Ewin told him in the morning that they needed to meet finance people at the Aquarium. At approximately 10.30 am he and Ms Ewin walked together to the Aquarium where they met with two persons.
494 The content of Mr Vergara’s witness statement in relation to the week of 18 May was not put to Ms Ewin. By her rebuttal evidence Ms Ewin denied the truthfulness of the evidence given by Mr Vergara save that Ms Ewin made no response to Mr Vergara’s evidence of the visit to the new LLA offices or to her and Mr Vergara attending at the Aquarium on 22 May. In relation to Mr Vergara’s evidence that she asked him to contact external consultants on 20 May, Ms Ewin said that she recalled asking Mr Vergara to follow up with those consultants but did not recall the specific date of the conversation.
495 Mr Vergara did cross-examine Ms Ewin in relation to the visit to the new offices. She accepted that the visit had been made. She said that she recalled Mr Newton making a statement that the trains were going to be rather noisy. She could not recall any statement that they would need to meet at the workstations rather than in her office due to the trains going past.
Complaint made by Ms Ewin to Mr Newton
496 Ms Ewin deposed that on Tuesday 19 May 2009 she asked Mr Newton to see her after work and that he came to her office. She said that she had a detailed discussion with Mr Newton about Mr Vergara’s behaviour. She described the behaviour of Mr Vergara in the period up to 19 May. She told Mr Newton that Mr Vergara had isolated her; had turned up to her platform unexpectedly; that he had tried to kiss her on the Wednesday; and that he had made a request to have an affair with her. She also said that she told Mr Newton about suggestions made by Mr Vergara (not previously referred to in the evidence given by Ms Ewin) that Mr Vergara had suggested perhaps they could duck off to a little hotel, do fixed asset revaluations out at the ski fields together or have a little country trip together.
497 Ms Ewin was then asked whether she had disclosed to Mr Newton any of her suspicions or conclusions about what had happened on the Friday night. She said she got to the point of telling Mr Newton but by that stage Mr Newton was laughing saying he himself had been hit with the ugly stick and that he had never had the pleasure of being a target of sexual harassment and fantasies and unfortunately no one had wanted to have an affair with him. That response, Ms Ewin said, made her feel humiliated and unable to tell Mr Newton what had happened on the Friday night. She said however that Mr Newton had been given a “full dialogue” of all that had happened prior to the Friday night. She said that Mr Newton was in the office for the rest of that week but was preparing for an LLA Board meeting in Shanghai.
498 Ms Ewin was cross-examined about her meeting with Mr Newton. She was taken to the report of Prof Dennerstein. In that report, Prof Dennerstein states:
Jemma said she tried to go to her boss and tell him what had happened on the Thursday night but he was unavailable. When she did see him and commenced telling him what Claudio had said to her, her boss laughed and said he had “the ugly stick and never had the pleasure of being the object of anyone’s sexual fantasy at work”. She said she had wanted to tell him that Claudio had raped her but he was just laughing at her. He told her that Claudio had to stay even though she had told him of at least some of Claudio’s inappropriate behaviour and that she had also told him that Claudio was not getting through the work. She felt humiliated. (She was distraught with tears telling me about this).
499 Ms Ewin confirmed the correctness of the description in the report to the effect that Mr Newton had told her that Mr Vergara had to stay. She said that Mr Newton told her that she had to discipline Mr Vergara herself. Mr Newton told her that he could not step in otherwise she would lose her position of authority within her own team. On being asked the same question a second time, Ms Ewin insisted that Mr Newton had said that Mr Vergara had to stay. She said that Mr Newton told her, “We could not have any more turnover of staff”.
500 Later in her cross-examination Ms Ewin said that Mr Newton had advised her to speak with Mr Vergara and reprimand Mr Vergara so that the harassment issue ceased and Mr Vergara remained until the end of his contract. Asked what she did in relation to Mr Newton’s instruction, she said she told Mr Vergara to pull his head in, sit in the corner and do journals. She could not recall when she told Mr Vergara that, other than that it was after she spoke with Mr Newton. Mr Newton’s evidence of the conversation, which I will later detail, including that Ms Ewin insisted that she wanted to handle the situation herself, was not put to Ms Ewin by Mr Vergara.
501 Ms Ewin was asked why if she was unsatisfied with Mr Newton’s response she did not contact either Ms Kubik or Mr Schryver. She responded that was because Mr Newton was her boss. She was pressed as to why she did not go to other members of management given the seriousness of the allegations. She said that because Mr Newton was responsible for staff hiring and firing, she had reported it to him. She also said that she carried out the recommendation made by Mr Newton, in the context of Mr Newton having said in their meeting that upon returning from Shanghai if there was still an issue he would sort it out himself, but that as Mr Vergara’s line manager Ms Ewin needed to speak to Mr Vergara first.
502 Pressed again as to why she did not escalate the issue, Ms Ewin said that she did not see that it was necessary to raise it any further than her direct superior and she acted on his instruction.
503 In her letter of 29 June 2010 to the directors of LLA, Ms Ewin said that on 19 May 2009, she first reported the sexual harassment and job security threats to Mr Newton just prior to Mr Newton’s trip to Shanghai. Mr Newton’s first reaction she said was bemusement. She said he laughed commenting that he himself had been “hit with the ugly stick and had sadly never himself been the target of any sexual harassment”. She went on to say that when Mr Newton realised she was silent and distressed he instructed her to address the verbal sexual harassment directly with Mr Vergara and if that failed he would speak to Mr Vergara later. In the letter Ms Ewin said that she did that but with the management team in Shanghai the sexual harassment intensified including gloating about the rape incident.
504 In her letter of 30 June 2010 to the Director of Public Prosecutions, Ms Ewin wrote that she did report the verbal sexual harassment by Mr Vergara to Mr Newton and that he laughed at her stating that he himself had been hit with the ugly stick and had not been the target of sexual harassment. She wrote that Mr Newton told her to tell Mr Vergara to stop saying things like, “I am going to fuck you over the desk until you scream” and “I have a big dick and you will like it”. She said that at the time Mr Newton was preparing for the Board meeting in Shanghai and said that after Ms Ewin tried to handle it, he would address it when he returned.
505 In his examination-in-chief, Mr Newton gave evidence about his meeting with Ms Ewin which he thought occurred on 18 or 19 May. He said that Ms Ewin told him that Mr Vergara had made a pass at her. Mr Newton related Ms Ewin’s account that she had left work on an evening earlier in the previous week, the previous Tuesday he thought, and that she and Mr Vergara had walked to the train station together. Ms Ewin said that suddenly Mr Vergara turned up on her platform stating that he had just missed his train and telling her that he was interested in having a drink. Mr Newton said he was told that they went to a bar and that at that point Mr Vergara made suggestions or explained to Ms Ewin that he had feelings for her. Mr Newton did not detail what Ms Ewin had said specifically. He described what he understood Mr Vergara had said to Ms Ewin as expressing feelings for her “of a non-professional nature”. Mr Newton also said that he was told at one point Mr Vergara attempted to kiss Ms Ewin. He could not recall the specific comments that Ms Ewin had told him were made by Mr Vergara.
506 He was asked what he told Ms Ewin. He said that he asked Ms Ewin what she would like him to do in the situation. He said he suggested that he could immediately remove Mr Vergara from the LLA office given his position as a contractor and that LLA were quite within their rights to do so. He said that he also offered to talk to Mr Vergara. He deposed that both of those suggestions were rejected by Ms Ewin “who wanted to handle the situation herself”. He said her specific words were, “I just need him to help me get through the audit and keep his head down and I will be fine”.
507 In the statement which Mr Newton gave to police on 30 December 2009, he gave a similar account to that given in his evidence-in-chief as to what he was told by Ms Ewin. As to his response, Mr Newton told police that he asked Ms Ewin what she wanted him to do and whether he should terminate Mr Vergara’s contract. Ms Ewin rejected that suggestion and said that she just needed Mr Vergara to help her complete the audit. Mr Newton said that Ms Ewin told him she was not comfortable with Mr Vergara on her own because he [Mr Newton] was going to Shanghai, but felt that as long as Mr Lafferty was in the office she was safe.
508 A similar account to that given by Mr Newton in his evidence-in-chief is recorded in the MPOL statement of Mr Newton of 19 January 2011. In that statement, Mr Newton is recorded as saying that later in the week on about 21 May 2009 he asked Ms Ewin how things were going and mentioned to her his concern that he was going to be out of the office (in Shanghai) for four days. Ms Ewin said that she would be ok. The statement suggests that Mr Newton’s concerns were somewhat ameliorated by the fact that there were other people in the workplace and that Mr Lafferty was in the same office with Ms Ewin and Mr Vergara.
509 When Mr Newton was cross-examined about the meeting of 19 May with Ms Ewin, other than for one matter his evidence as to what had been said at that meeting was not challenged. It was put to him that he had said at the meeting that he had been hit with the ugly stick. Mr Newton confirmed that he had said that. He said the comment was made at the end of the discussion as they were both walking out the door. He described it as a throwaway line “to self-deprecate myself”.
510 Ms Ewin alleged that she had first complained to Mr Newton about Mr Vergara’s offensive conduct on 14 May 2009. It is convenient that I now record why I am satisfied that 19 May was the first occasion that Ms Ewin complained to Mr Newton about Mr Vergara’s sexual conduct.
511 In her evidence-in-chief, Ms Ewin deposed that she met with Mr Newton on 14 May and raised Mr Vergara’s conduct with him. She said that Mr Lafferty told her that Mr Newton was looking for her. She deposed that she went to his office and had a discussion with him and said, “Vergara is doing weird things and I think he’s besotted with me. I don’t understand. I don’t know what to do about it”. To that she said that Mr Newton laughed and said that he didn’t have much experience with office romances but he thought it was funny. She deposed that Mr Newton told her to tell Mr Vergara to stop it and just do his work. She referred to that as “more bemusement by Mr Newton”.
512 In cross-examination, Ms Ewin was asked whether she specifically told Mr Newton “the vulgar and vile” propositions that Mr Vergara had made to her in the prior couple of days. Her answers initially avoided a direct response and were evasive. Ms Ewin then said that she had told Mr Newton of Mr Vergara’s admission that he was wanking in the office shower and said that Mr Newton made a vile comment back saying, “I hope he washes it down the sink”. She further said that she told Mr Newton that Mr Vergara had requested to have an affair with her and had attempted to kiss her. She said Mr Newton laughed and said that sadly, he had not been the subject of anyone’s affections in the workplace.
513 There is a large body of evidence which strongly suggests that the first time that Ms Ewin complained to Mr Newton of any sexual behaviour towards her by Mr Vergara was on 19 May. Mr Newton gave evidence that the only complaint made was made on 18 or 19 May. His evidence was that there had not been an earlier discussion with Ms Ewin about Mr Vergara’s behaviour. In cross-examination by Ms Ewin’s counsel, Mr Newton was asked whether he could recall a discussion with Ms Ewin about Mr Vergara on 14 May 2009. He said that he could not. The content of that discussion as alleged by Ms Ewin was not put to Mr Newton by Ms Ewin’s counsel. Mr Newton was taken to an email that he forwarded to Ms Ewin at 7.54 pm on 14 May 2009 in which he asked, “Everything OK ie this morning?” The suggestion sought to be made was that the email was a follow up to the alleged meeting. Mr Newton could not recall what prompted him to send the email. In my view, Ms Ewin’s lateness for work that morning was the probable cause for Mr Newton’s query.
514 Ms Ewin’s claim that she met with Mr Newton on 14 May to complain about Mr Vergara is not supported by other accounts given by her as to when she first complained about Mr Vergara to management at LLA. In the Nurse-On-Call conversation of 17 May 2009 and in particular in the exchange re-produced at [393] above, Ms Ewin appeared to be referring to Mr Vergara’s conduct on Wednesday 13 May where she said, “I didn’t go and report it”. Referring to that comment, Ms Ewin said in her evidence, “And, it is correct, I didn’t report it formally…”
515 There is no mention of a complaint made to Mr Newton at all in the statement given by Ms Ewin to police. In a letter to the directors of LLA written by Ms Ewin on 29 June 2010, Ms Ewin said that she first reported the sexual harassment and job security threats to Mr Newton on 19 May just prior to his trip to Shanghai. On 30 June 2010, Ms Ewin wrote a letter to the Centre Against Sexual Harassment. In that letter she stated that she reported the sexual harassment to her boss and that his first reaction was to laugh. The letter states that her boss took over seven working days to arrange for HR to meet with her. By reference to evidence about Ms Kubik to which I will later refer, the content of that sentence suggests that Ms Ewin was referring to 19 May and not 14 May. In her statement to MPOL, Ms Ewin is recorded as saying that prior to the assault she reported sexual harassment and job security threats to Mr Newton. Her account of what Mr Newton did, including that he said that he had been hit by the ugly stick and had not been lucky enough to have been the subject of sexual harassment, is consistent with Ms Ewin’s description of the conversation with Mr Newton on 19 May.
516 On 30 June 2010, Ms Ewin also wrote to the Director of Public Prosecutions. In that letter, Ms Ewin dealt with what she referred to as the DDP’s concern as to why she did not report the alleged rape to her workplace. Ms Ewin stated that she did report the verbal sexual harassment to Mr Newton and that he laughed at her stating that he himself had been hit with the ugly stick. Again that seems to be a reference to the content of the meeting on 19 May. That is further confirmed by the reference in the letter to the fact that at the time she made her report, Mr Newton was hurriedly preparing for a Board meeting in Shanghai. As other evidence identifies, Mr Newton left for Shanghai on Sunday 24 May.
517 In her report, Prof Dennerstein said that Ms Ewin had told her that she had tried on Thursday [14 May] to go to her boss to tell him what had happened, but he was unavailable.
518 I do not accept that Ms Ewin complained to Mr Newton about Mr Vergara’s sexual conduct towards her on 14 May 2009. In my view such a complaint was made for the first time on 19 May 2009.
519 Whilst the evidence that Ms Ewin gave initially on the topic may have been mistaken and she had intended to refer to her meeting with Mr Newton on 19 May, I am satisfied that the incorrect evidence she gave was not entirely mistaken. As I have said already, I found that Ms Ewin was particularly sensitive to allegations made to her by Mr Vergara that she had failed to report her claims that she had been subjected to sexual misconduct. When faced with such allegations put directly by Mr Vergara, Ms Ewin lost her composure, became defensive and evasive and gave odd and unlikely responses. As expressed earlier, this caused me to take a cautious approach to Ms Ewin’s uncorroborated evidence.
520 On 24 May together with Mr Schryver and other officers of LLA, Mr Newton travelled to Shanghai to attend an LLA Board meeting. Mr Newton did not return to the LLA office until the morning of Thursday 28 May.
521 At 1.29 pm on Monday 25 May, Ms Thomas emailed Ms Ewin saying that she was just going to head to the gym and asking whether Ms Ewin wanted her to stick around until Mr Lafferty gets back. At 5.22 pm on Monday 25 May, Ms Thomas sent Ms Ewin an email stating that she was heading off in about ten minutes and asking whether Ms Ewin wanted to join her.
522 Ms Ewin gave evidence that on Tuesday 26 May, Mr Lafferty was away ill. She deposed that Mr Vergara had started to say to her in that week that he had overheard Mr Newton and Mr Schryver talking about sacking her. She stated that Mr Vergara continued to tell her that she should resign and that nobody would believe her. He said she looked too stressed to have the job of financial controller. He said to her that she should resign and just leave and that it would be better for her resume. He said that Ms Ewin needed to look after herself because her boss didn’t like her, he hated her and he would not look after her and that it would be better if she just left and was gone by the time the executive team returned from Shanghai. Ms Ewin said that she felt confused, frightened and hunted.
523 At 11.06 am on 26 May, Ms Ewin sent an email to Mr Newton in Shanghai. The email responded to a request by Mr Newton for Ms Ewin to send him a quick summary of the estimated tax position. Ms Ewin apologised saying that it had not been a good day yesterday. She said Mr Lafferty was away and that she had been told yet again that you [Mr Newton] “appear to have made you[r] mind up about me and that it is best that I look after myself” The email continued, “I told him I trust your frankness and that if and when you want to bullet me I know I have given it my best efforts what will be will be – your choice as CFO goes and it is your choice to have who you want in this seat to support you… Mind games shit me”.
524 Ms Ewin said that the email was referring to Mr Vergara’s ongoing insistence that she needed to resign and that Mr Newton hated her and she should just leave her job.
525 At 11.28 am on the same day, Mr Newton replied telling Ms Ewin, “Don’t get into debate with him. I will deal with him when I get back”.
526 In her evidence-in-chief, Ms Ewin then recounted that she had received a phone call from Virginia Kubik, who provided human resources services to LLA. At about 5.27 pm on Tuesday 26 May, Ms Kubik telephoned Ms Ewin to say that she had spoken with Mr Schryver and Mr Newton by telephone and that she was flying down to Melbourne to meet with Ms Ewin the next morning. At 5.27 pm Ms Kubik confirmed the earlier conversation with Ms Ewin by email.
527 In her statement to police, Ms Ewin referred to a number of events including some that were not the subject of her evidence at the hearing. She told police that on Monday 25 May through to the Wednesday of that week, Mr Vergara continued making comments to her. She said that he asked her whether they were friends anymore and whether she still wanted to be his friend to which she responded, “You will need to compartmentalise Friday night and no we are not friends nor were we ever best friends”. She stated that Mr Vergara responded by saying, “I cannot compartmentalise Friday night it was mind blowing and has knocked me sideways. I want to talk to you about it. Let me know when we can chat and decompartmentalise”. She said that her response was, “I will not be talking to you about it as there is nothing to discuss. You got your scalp and there will be no more, get over it”. Mr Vergara said, “Don’t you want to come running with me anymore?” To which Ms Ewin stated that she responded she didn’t like running because it hurt her knees.
528 In her statement to police, Ms Ewin then dealt with events on Tuesday 26 May and said that Mr Lafferty called in sick and she was alone with Mr Vergara. She said that it was dreadful. She said that Mr Vergara became aggressive in the way that he was speaking to her. She described it as almost like an army sergeant and gave the example of Mr Vergara saying to her, “Sign this journal in blood boss”. She said that made her sick “as I had been bleeding for about a week post-15th of May 2009”.
529 Her statement to police went on to describe references she alleged were made by Mr Vergara to her position being at risk and to many comments he had made about her work. She said she felt that she could not trust Mr Vergara’s work and that she was being eroded professionally. She felt confused by Mr Vergara’s statements on many topics. She said she was in shock not really knowing how to respond.
530 Her statement to police went on to state that out of the blue on Tuesday 26 May in the late afternoon, Mr Vergara offered to buy her a coffee. She declined. She said that as a test she asked Ms Thomas to pretend to leave at about 6 pm and to wait five minutes just to test what Mr Vergara did. She said that when Ms Thomas walked back into her office Mr Vergara was already behind Ms Ewin’s desk. Ms Thomas asked if she was going to the train station and Ms Ewin said she was. She said that Mr Vergara was angry and said, “What leaving so soon tonight Jemma, well I might walk to the train station with you”. Ms Ewin said to police that she walked to the station with Ms Thomas and Mr Vergara.
531 In her statement to police, Ms Ewin went on to state that earlier that afternoon she had emailed Mr Newton and advised him that she could no longer take Mr Vergara’s mind games relating to her position at LLA.
532 In the letter which Ms Ewin wrote to the directors of LLA dated 29 June 2010, Ms Ewin also referred to events in the week of 25 May. She said that with the management team in Shanghai, Mr Vergara (whom she referred to as “X”) was “unabated” and intensified his sexual harassment of her including gloating about the rape incident. She said that his intimidation and pressure on her to resign before the CEO and CFO returned from Shanghai also intensified. She said that Mr Vergara said he would step up into her chair and see the audit through. She described the verbal intimidation as horrific. Ms Ewin stated that in the week prior to what she described as “the rape”, Mr Vergara had made statements to her about over hearing discussions between Mr Newton and Mr Schryver regarding their intention to sack her after the year-end audit. She said in that week Mr Vergara repeatedly told her she should resign immediately as in the longer term that would look better than her pending sacking.
533 What prompted Ms Kubik to contact Ms Ewin was the subject of evidence given by Mr Newton. Mr Newton deposed that on receiving Ms Ewin’s email on 26 May and appreciating that with Mr Lafferty away she was alone with Mr Vergara in the office, he became concerned. He said that he turned to Mr Schryver who was standing next to him and told Mr Schryver of the allegations that Ms Ewin had raised with Mr Newton in the previous week. Mr Schryver then immediately tried to call Ms Kubik. He was able to speak to her shortly thereafter and asked her to drop everything and travel to Melbourne the next day. Mr Newton said that he replied to Ms Ewin and asked her to go to a conference room where she could be alone and call him which he says she did. He said that he explained to Ms Ewin that Ms Kubik would be attending the Melbourne office on the next day to speak to her about the allegations.
534 In the statement which Mr Newton gave to police on 30 December 2009, he also referred to the events of 26 May. He said that Ms Ewin had sent him an email while he was in Shanghai indicating that Mr Lafferty was away and that she wasn’t happy with Mr Vergara. He said he spoke to Mr Schryver after he read the email. He told Mr Schryver that Mr Vergara had made a pass at Ms Ewin and that she was alone in the office and that her email indicated that she wasn’t comfortable with Mr Vergara. He stated that Mr Schryver contacted Ms Kubik and instructed her to meet with Ms Ewin to get to the bottom of what was happening. He said Mr Schryver was very concerned.
535 Mr Newton also stated that he sent an email to Ms Ewin to get her to phone him so that he could tell her that Ms Kubik was coming to Melbourne to deal with the issues with Mr Vergara. His statement continued:
When I spoke to Jemma she did not respond to how I would anticipate her to be. Typically I would have expected her to be dismissive and say I can handle it but she reacted with instant relief in her voice and welcomed the opportunity to speak with Virginia. Her relief was obvious almost like “Oh thank god” unlike her responses before when I’d asked her if she needed me to be involved, typically I’d get the brush off with a “No, I can take care of it”.
536 In cross-examination, Mr Newton confirmed the accuracy of what he had told police. He confirmed that he had been very surprised that Ms Ewin had expressed relief when she was offered assistance. When asked if that reaction was unusual he said, “It was out of character”.
537 On the evening of Tuesday 26 May, after Ms Ewin was aware that Ms Kubik would meet with her the next day, Ms Ewin deposed that she came home to an empty house. She was frightened and she rang her mother. In that conversation she told her mother that she had been raped.
538 At 10.20 am on 27 May, Ms Kubik emailed Ms Ewin to say that she was downstairs and asked her to call. Ms Ewin went down to the lobby and walked with Ms Kubik around the corner to a coffee shop and met with her for some two hours. When asked to give a summary of what she had told Ms Kubik, Ms Ewin said that she had told Ms Kubik what she had told Mr Newton on 19 May, of Mr Vergara’s unwelcome and bewildering fixation with her. She said she also told Ms Kubik of the events of Friday 15 May at the Insignia Bar insofar as she could remember them. She also told Ms Kubik her conclusions about what had occurred that night. She said that she thought she had been raped by Mr Vergara.
539 That afternoon Mr Newton emailed Ms Ewin asking if she was ok, to which she replied, “Thanks”. There was a further email exchange between Mr Newton and Ms Ewin that afternoon. Ms Ewin’s evidence was slightly confused about the order of the emails but the documents tendered indicate that in the afternoon of 27 May, Mr Newton emailed Ms Ewin to ask if she was ok. She replied that she was and that she had spoken to Ms Kubik. Ms Ewin also said that things were a little tense, that Mr Lafferty had resigned and she was concerned about he and Mr Vergara talking. Mr Newton replied by asking Ms Ewin to take care and indicating that he would see her the next day. He said Ms Kubik was taking care of everything and then said, “I should have done this when you told me last week – so sorry I didn’t”. To that Ms Ewin replied:
It’s OK I just did not know what to say and how to articulate what had to be said.
Life – sometimes you do not get to choose what comes your way – instead it is how you handle what does that defines you – infamous “mum’s words”.
540 Ms Ewin was cross-examined in relation to some aspects of her meeting with Ms Kubik. She was taken to Prof Dennerstein’s report which states:
Jemma said that when she told HR about the rape they had dissuaded her from going to the police. They gave her several scenarios and suggested that it would work out better for her not to become involved with the police.
541 Ms Ewin was asked whether the first sentence was correct. She said that in the interview with Ms Kubik she had been told that many women who have had things happen to them never report it to the police. She said that Ms Kubik spoke of one friend she knew personally who reported her rape to the police and another friend who did not. Ms Kubik had told her that the woman who had reported the rape to the police was divorced, had no children and had no house. She said Ms Kubik told her that the woman who kept it to herself saved herself from the continual abuse of the police system and that she remained married and happy. Ms Ewin said that the second sentence set out in Prof Dennerstein’s report (quoted above) reflects the parable which Ms Kubik related to her.
542 In her MPOL statement which Mr Vergara tendered, Ms Ewin was recorded as having told Ms Kubik on 27 May what she thought had happened. The report states that Ms Kubik gave Ms Ewin an explanation about two people she knew who had been raped and refers to Ms Ewin’s impression that by reference to that explanation, Ms Kubik seemed to be telling her that she should let it go.
543 In further cross-examination, Ms Ewin denied that she had said to Ms Kubik that Mr Vergara had abducted her; agreed that she had told Ms Kubik that Mr Vergara had battered her; and said that she offered to show Ms Kubik her bruising but Ms Kubik did not want to see it. Ms Ewin said that Ms Kubik did not encourage or advise her to report the alleged assault to the police nor did she encourage Ms Ewin to tell her husband. It was not suggested to Ms Ewin that she did not tell Ms Kubik that she had been raped by Mr Vergara. The evidence (which I later record) given by Ms Kubik to the effect that Ms Ewin had said she was unsure as to whether her physical state was indicative of having had sex or of her menstruating, was not put to Ms Ewin.
544 Ms Kubik was called by Mr Vergara. She stated that Mr Schryver had contacted her in late May 2009. He communicated to her that she needed to go to the LLA office the next day and meet with Ms Ewin because he had a conversation with Mr Newton and whilst Mr Schryver didn’t know what the situation was, the conversation had rung some bells in his ears and he had some concerns. After that she contacted Ms Ewin to say that she would be in Melbourne the next morning to have a conversation with her. She arrived in Melbourne the next morning and they had a conversation at a coffee shop. Ms Kubik went to order a drink and something to eat. When she got back to the table Ms Ewin was crying. Ms Ewin told her that there had been a function about two weeks earlier at the Aquarium and that a group had gone to a pub/bar across the street. Ms Ewin told her that she had a period of time that she couldn’t account for, that she had no memory of that period whatsoever and that she felt that she had probably been drugged. She acknowledged that she had something to drink but thought it not enough to make her not remember a whole block of time. Ms Ewin said that she had stood up to go to the bathroom and she vaguely thought Mr Vergara had gone over to talk to her because Ms Thomas had overheard her say “no” to Mr Vergara. Ms Ewin said that the next thing that she remembered was that she had a gap in time and she remembered being on the train station platform and looking at this big clock, but that she couldn’t really account for the time. The next thing that she remembered was waking up the next morning at home but couldn’t really remember how she had gotten home. Ms Ewin told Ms Kubik that the next morning she called and spoke to her mother, that she hadn’t disclosed anything to her husband because she was concerned whether he would be able to cope with it and that she was still very much trying to figure out what had transpired but that she had called a helpline and had arranged for a morning-after pill. Ms Kubik said that when she asked Ms Ewin why she had asked for the morning-after pill, Ms Ewin said, “Well, you know, you can just tell when you’ve had sex” and that she wasn’t sure if it was her period or not.
545 Ms Kubik deposed that she then said to Ms Ewin she felt Ms Ewin should probably speak to the police, to which Ms Ewin responded that she wasn’t prepared to do that. Ms Kubik deposed that she then said that Ms Ewin needed to speak to a professional and asked whether Ms Ewin felt comfortable about speaking to a counsellor. Ms Ewin said that she would and Ms Kubik made arrangements for that to happen.
546 Ms Kubik was asked whether Ms Ewin had said anything about where ‘the event’ may have taken place. According to Ms Kubik, Ms Ewin did not say but Ms Ewin thought that she had gone back to the Bar to get her backpack and had paperwork or maybe a laptop, but that at that point in time Ms Ewin said she was still trying to piece together what had happened. When asked whether Ms Ewin had described her physical condition, Ms Kubik said, “Not beyond saying that she felt that she could sense that she had sex and that she was unsure whether it was her period or not”.
547 Ms Kubik said that after the meeting she called Mr Schryver to say that she wasn’t 100 per cent sure what had happened but by gauging the level of Ms Ewin’s distress it appeared something had happened and therefore she recommended that LLA end Mr Vergara’s engagement. She deposed that Mr Schryver agreed with that recommendation and asked her to contact the agency to advise Mr Vergara not to come back and to finish up his contract.
548 Ms Kubik contacted a firm which provided psychological services and indicated that she had an employee who was quite distressed, that she “didn’t know what we were dealing with and what the details were” and that she felt that the employee needed to speak to a counsellor “to help her through that process”. She asked that Ms Ewin be contacted in order that an arrangement be made as soon as possible because she wanted Ms Ewin to receive assistance that day or the next day.
549 Ms Kubik was asked whether Ms Ewin “made the allegation against Mr Vergara?” She said that at that point in time she had not, that Ms Ewin was still piecing together that night. Ms Kubik said that Ms Ewin had told her that she still had a period of time that she couldn’t account for.
550 Ms Kubik made a statement to MPOL which Mr Vergara tendered. The statement was taken on 19 January 2011. The contents of that statement are largely consistent with the evidence which Ms Kubik gave in chief. There are some aspects of the statement which tend to provide more detail. In the statement, Ms Kubik refers to the phone call she received from Mr Schryver on 26 May. The statement emphasises that Mr Schryver had indicated that something was not right with Ms Ewin and that he left no doubt in Ms Kubik’s mind that the matter was urgent. In the statement, Ms Kubik said that at the coffee shop meeting Ms Ewin stated that she had not spoken to her husband at all. The statement records that Ms Kubik told Ms Ewin that if she thought it was a police matter that she needed to go to the police. Ms Ewin said that she couldn’t tell her husband. The statement records that Ms Ewin spoke about Mr Vergara and said that he was giving her the creeps since that night. He was standing too close and was saying things that made her uncomfortable. Ms Kubik told Ms Ewin that she needed to go home and asked her to promise to speak to a counsellor. It was agreed that she would go home and that Ms Kubik would arrange a counsellor.
551 The MPOL statement records that when Ms Kubik got back to the office she called Mr Schryver and told him that she wasn’t sure what had happened but that Ms Ewin’s level of distress suggested that something had happened and “we should get a counsellor and…get rid of Claudio”. Robert Walters, Mr Vergara’s employer was contacted and told that Mr Vergara was not to go back to the LLA office again and that there should be a meeting the next morning to discuss the matter. The next morning the representative of Robert Walters wanted to know why LLA was finishing up Mr Vergara. In her MPOL statement Ms Kubik says that “we” indicated that there were some potentially serious allegations and that LLA did not want Mr Vergara working there anymore. In a conversation with a representative of Robert Walters later that day, Ms Kubik expanded further on the allegations and indicated that they may be of a serious criminal nature.
552 Ms Kubik’s MPOL statement records that LLA did not conduct a formal investigation into the matter. It explains that at the time Ms Kubik first spoke to Ms Ewin, Ms Ewin did not know what had really happened anyway. By the time LLA had further details the matter was in the hands of the police and in any case Mr Vergara was gone by Wednesday 27 May.
553 In cross-examination, Ms Kubik agreed that when she met with Ms Ewin at the coffee shop, Ms Ewin was clearly distressed. She said the meeting had gone for about an hour but that it had occurred over three years earlier and it was very difficult for her to remember everything in detail. Ms Kubik said she did make notes but the extent to which her evidence relied on contemporaneous notes was not explored. Nor did either party seek the tender of those notes.
554 In his examination-in-chief, Mr Newton was asked by Mr Vergara what Ms Ewin told him when he returned from Shanghai on the morning of 28 May. He said it was hard for him to recall because in the ensuing weeks he had lots of conversations with Ms Ewin that extended for multiple hours at a time. He was unable to specifically recall the conversation. He said however that “obviously I had been made aware of – there were serious allegations of a sexual assault nature – you know”. Mr Newton said that Ms Ewin told him that she had been to see a nurse for a morning-after pill and he believed that she had told him that she had vaginal bleeding and bruising. That is all that he could remember.
555 Mr Newton referred to the decision to terminate Mr Vergara’s engagement in his MPOL statement. He said that it was indicated to Robert Walters on 28 May that serious allegations about events that may have taken place had been made. Robert Walters was also told that Mr Vergara’s level of performance had noticeably declined since his contract was extended. Mr Newton said that they did not go into detail about what had been alleged.
556 In his witness statement, Mr Vergara said that during 25, 26 and 27 May although it was business as usual between him and Ms Ewin, it became apparent to him that something was not quite right. He said the camaraderie that they once had had dissipated and Ms Ewin was miserable, abrupt and curt with him. He thought something was wrong and that his days were numbered. He felt that it may have had something to do with a disagreement he had with Mr Newton in the prior week about some accounting work.
557 Mr Vergara was on a train heading home on 27 May when he received a call from a representative of Robert Walters. He was advised that his contract had ended and he was not to go to the LLA office the next day or ever again.
558 In her cross-examination, Ms Ewin was questioned as to the order in which she communicated to others that she had been sexually assaulted. She said that she had communicated to Ms Kubik that she had been sexually assaulted at the meeting in the coffee shop on 27 May. She thought that she had told Mr Lafferty on the date that he tendered his resignation. The evidence before me records that Mr Lafferty’s resignation was tendered on or about 27 May. Insofar as Ms Ewin communicated the allegations to Ms Thomas, Ms Ewin said that occurred prior to 26 May and after 18 May. She could not be more specific.
559 Mr Lafferty deposed that on giving notice of his resignation from LLA he had a conversation with Ms Ewin. That conversation was identified to have occurred in the last week of May. He said that when he handed in his resignation to Ms Ewin she was quite emotional and described to him why she was emotional. She alleged to him that Mr Vergara had raped her and that there had been incidents of harassment leading up to that. In the statement given by Mr Lafferty to MPOL he said that on the day that he gave his notice to Ms Ewin, on about 27 May, she broke down and described what had been occurring. He said he was completely surprised by what she told him about Mr Vergara. No further detail was given. In his evidence, Mr Lafferty said that the first time that he had heard of a claim regarding harassment was on the occasion when he handed in his resignation.
560 On 28 May 2009, Ms Ewin attended a counselling session with Jodi Yorgey, the psychologist who Ms Kubik had organised for Ms Ewin to see. Ms Ewin continued counselling sessions with Ms Yorgey through to July 2010. On 29 May, after her first session with Ms Yorgey, Ms Ewin also first reported the sexual assault to her doctor. On the following Saturday, 30 May, Ms Ewin first told her husband of what had transpired.
561 On 3 or 4 June 2009, Mr Lafferty left his employment with LLA.
562 On 6 June 2009, Ms Ewin made a complaint to Victoria Police that she had been raped by Mr Vergara. In her statement to police, Ms Ewin explained the circumstances in which she contacted police. Those circumstances included that her workplace had organised counselling and there was discussion of “the legal side of things”. In her statement to police she said that she did not report “it at the time because I had so much trouble making sense of it. My bosses were all overseas and Claudio had been signed up for another contract and [I] didn’t know what to do with him. I felt so powerless until my bosses came back”.
563 Ms Ewin continued to be employed at LLA until 26 September 2009. At Mr Newton’s suggestion she was relocated to a different office to the one she had occupied with Mr Vergara and Mr Lafferty. During May, June and September Ms Ewin was tested for sexually transmitted diseases. During that period she also attended counselling sessions with Ms Yorgey.
564 By letter dated 16 September 2009, Ms Ewin tendered her resignation. In that letter she indicated her intention to leave after the year-end audit was completed and indicated 25 September 2009 as her preferred final working day. Her final working day in the LLA office was 25 September 2009, although Ms Ewin completed some further work from home which she provided to Mr Newton on 29 September.
Impact of the subsequent events on the assessment of the evidence
565 There is some further relevant evidence which provides additional context and which I took into account in assessing the evidence. I need not describe it in detail as it was not controversial. The books of account of LLA were in a highly unsatisfactory state. As a result there was intense pressure upon Ms Ewin and her team to work very long hours to complete the various accounting tasks required. Ms Ewin was working extremely long hours and long hours were worked by Mr Vergara as well. It was essential for a contractor, like Mr Vergara, to assist Ms Ewin if the necessary work was to be completed in time. Prior to Mr Vergara joining LLA a number of contractors had been used whom Ms Ewin regarded as unsuitable. Turnover within Ms Ewin’s team had been high and was a matter of concern to both Ms Ewin and Mr Newton.
566 It is also relevant to say something further about Ms Ewin’s character. Ms Ewin was no wilting flower. The evidence about Ms Ewin’s character, as well as what I saw of her, suggest to me that at the relevant time Ms Ewin was a highly motivated worker and keen to impress, as her extremely long hours of work demonstrated. Ms Ewin was resistant to seeking assistance from others and liked to portray herself as being capable of handling the situations that confronted her. Mr Newton’s evidence was that typically Ms Ewin was dismissive of any offer of assistance preferring to take care of things herself. Ms Thomas’ evidence of Ms Ewin’s reaction (“I am handling it”) to her offer of assistance during Ms Ewin’s confrontation with Mr Vergara at the Insignia Bar also exemplified that aspect of Ms Ewin’s character. That evidence was particularly germane because the situation which Ms Ewin considered she could handle alone was, I would infer, Mr Vergara’s continued sexual pursuit of her.
567 Furthermore, whether or not it was in fact the case, I accept that Ms Ewin held the view that any complaint made by her about sexual misbehaviour (at least of a verbal nature) would not be taken very seriously by her employer. As she said in the Nurse-On-Call conversation, Ms Ewin thought LLA to be “pretty much a boys’ club” and Mr Newton to be “a jock”.
568 The other contextual matter of some relevance but somewhat more controversial, was the extent to which Ms Ewin had the capacity to deal with Mr Vergara by ending his engagement at LLA. Ms Ewin’s evidence was that only Mr Newton had the power to hire and fire. Mr Vergara asserted that Ms Ewin had that power. In my view, even if Ms Ewin did not formally have the capacity to remove Mr Vergara from LLA, she had the practical capacity to do so. Mr Newton had regularly acted on her advice in the hiring and firing of contractors or employees under Ms Ewin’s supervision.
569 As I have already concluded, on 12 May 2009 Mr Vergara suggested that he and Ms Ewin should go out dancing and let their hair down. Ms Ewin did not report that conduct and took no action in relation to it. In the circumstances and given the nature of the conduct, no action beyond Ms Ewin’s rejection of the invitation was warranted. Nothing more needs to be said of that incident.
570 The conduct which I have found Mr Vergara engaged in between 13 May and the afternoon of 15 May was sufficiently serious to justify Ms Ewin taking action against Mr Vergara. On 13 May the conduct involved Mr Vergara touching Ms Ewin’s hand, attempting to kiss her and sexually propositioning her in explicit and highly offensive language. That caused Ms Ewin to feel shaken, shocked and frightened. Mr Vergara’s sexual propositioning of Ms Ewin continued in the same vein although in more restrained terms on 14 May and at the LLA office on 15 May.
571 Other than rejecting Mr Vergara’s advances, Ms Ewin took no action to deal with Mr Vergara’s behaviour until 19 May when she raised it with Mr Newton. Ms Ewin had ample opportunity to seek assistance or to deal with the issue herself. I did find it surprising that given what occurred in particular on 13 May, Ms Ewin did not take any action immediately thereafter. As I have found, Ms Ewin wrongly asserted in her evidence that she complained to Mr Newton on 14 May about Mr Vergara’s behaviour. Having relied on that misplaced explanation, Ms Ewin provided no other explanation for her inaction at that time.
572 I accept that some explanation is provided by Ms Ewin’s general reluctance to seek assistance and her typical reaction of wishing to handle situations herself. Further, as I have said, she held the view that her workplace was not likely to be particularly sympathetic. Work pressure and the high turnover of staff was also likely to be an issue. Ms Ewin deposed and it was not otherwise disputed, that Mr Newton had instructed her that there would be no more staff movements until 30 September 2009 when all of the corporate accounts were due to be finalised.
573 Ms Ewin’s inaction did cause me to doubt the veracity of her evidence that Mr Vergara had sexually propositioned her and otherwise conducted himself in the manner she alleged on 13 and 14 May and at work on 15 May. However, those doubts were alleviated, including because of the corroboration of Ms Ewin’s evidence by the evidence in the pretext conversations of Mr Vergara’s sexual propositioning of Ms Ewin and his use of explicit and offensive language to do so.
574 Turning then to the impact of the post-15 May events on my findings as to what occurred on the night of 15 May. The first thing which should be recognised is that I should not proceed on the presumption that Ms Ewin should be expected to respond to those events in a rational manner. Whatever may have happened on the night of 15 May, I am satisfied that from that time on and in the period here under consideration, Ms Ewin’s psychological state was precarious. Dr Conlan who saw her on 16 May described her as traumatised and in an agitated and disturbed state. When Ms Ewin first presented to her general practitioner on 29 May, she displayed symptoms of extreme distress, anxiety, tearfulness, anger and grief and was described as feeling hyper, vigilant and fearful. I accept, for reasons I will give later, that Ms Ewin suffered from PTSD. In any event, it may be presumed that a woman who believes she has been raped is likely to be distressed and traumatised for some many weeks and it ought not be presumed that such a person will necessarily act in a rational and consistent manner.
575 Ms Ewin did immediately acknowledge the sexual assault to which she considered she had been subjected. She did that when she saw Dr Conlan shortly before midday on 16 May. She did that again the next morning in her conversation with Nurse-On-Call. Consistently with the sexual intercourse to which Ms Ewin believed she had been subjected, Ms Ewin took the morning-after pill at about 11.45 am on 17 May.
576 Despite being told in the Nurse-On-Call conversation that she had 72 hours from the time of the incident to have a forensic examination conducted, Ms Ewin did not do so. Ms Ewin explained that she did not want anybody touching her, looking at her or testing her. She said she felt dirty. In the circumstances, I do not regard Ms Ewin’s failure to take the rational step which Mr Vergara suggested she should have taken to be of any forensic assistance to the question of what happened to Ms Ewin on the night of 15 May.
577 On the first working day after the night of 15 May (18 May), Ms Ewin asked Ms Thomas for assistance. Ms Thomas’ evidence, which I accept, is that Ms Ewin expressed to her that she had no memory of the events of the night of 15 May and told Ms Thomas that she did not feel safe with Mr Vergara. Ms Thomas was asked by Ms Ewin to wait and accompany her when she left the office. Ms Ewin gave a similar account. Thereafter Ms Thomas watched out for Ms Ewin.
578 On the following day, 19 May, Ms Ewin first reported Mr Vergara’s sexual conduct towards her to Mr Newton. Based on the evidence given by both Ms Ewin and Mr Newton, I accept that Ms Ewin told Mr Newton that Mr Vergara had propositioned her and tried to kiss her and generally recounted the events of 12 and 13 May. I accept Ms Ewin’s evidence that she intended to tell Mr Newton of what she believed had happened to her on the night of 15 May but did not do so. I also accept the reasons she gave for not doing so. Consistently with the evidence which Ms Ewin gave, Mr Newton acknowledged that his response to Ms Ewin’s complaint that Mr Vergara had been sexually propositioning her included a statement that he had been hit with the ugly stick. Mr Newton described that comment as a throwaway line but I accept Ms Ewin’s evidence that she experienced the comment and the laughter which accompanied it as humiliating and that it caused her to refrain from telling Mr Newton that she believed she had been raped by Mr Vergara on the Friday night.
579 The manner in which Mr Newton dealt with Ms Ewin’s complaint was insensitive and inappropriate. That was somewhat recognised by Mr Newton himself in the apology he communicated to Ms Ewin by email on 27 May. Mr Newton’s response is also to be contrasted with that of Mr Schryver whom, on the basis of the same information held by Mr Newton, immediately dispatched Ms Kubik to Melbourne to assist Ms Ewin.
580 I need not resolve the conflict in the evidence of Ms Ewin and Mr Newton as to whether Mr Newton told Ms Ewin to deal with Mr Vergara or whether Ms Ewin insisted on doing so herself. It is sufficient for the issue at hand that I find, as I do, that Ms Ewin tried but failed to report her belief that Mr Vergara had sexually assaulted her to her employer. In the circumstances, the failure was explicable and because of that event and given the psychological state Ms Ewin was in, whilst it may not have not been rational, it is also explicable that no further attempt was made by Ms Ewin to make that complaint until she did so to Ms Kubik on 27 May.
581 I should add that despite some prevarication in the evidence given by Ms Kubik as to whether Ms Ewin had specifically accused Mr Vergara of sexual assault, I am satisfied that Ms Ewin told Ms Kubik on 27 May that she thought she had been raped by Mr Vergara.
582 In the end and given the circumstances, the timing and manner in which Ms Ewin communicated to her employer that she thought she had been the victim of a sexual assault by Mr Vergara is not suggestive of Ms Ewin not having held such a belief and, in my view, says nothing much at all about what it was that Mr Vergara did to Ms Ewin on the night of 15 May.
583 The evidence of Ms Thomas is that she was made aware by Ms Ewin about a week or two after 15 May that “something real and serious” had happened. Ms Ewin told her mother that she had been raped on 26 May. Mr Lafferty was told by Ms Ewin that Mr Vergara had raped her on about 27 May. Ms Ewin commenced psychological counselling on 28 May and on that day she first told her general practitioner that she had been the subject of a sexual assault. Ms Ewin told her husband on 30 May. She first contacted police on 6 June 2009.
584 Ms Ewin was pressed to explain in cross-examination why she had not told her husband or the police at an earlier time. Ms Ewin lost her composure when examined on these topics. At one point she called Mr Vergara a “vulgar pig” and was visibly not coping. Ms Ewin was defensive and was evasive in responding to Mr Vergara’s cross-examination on these matters. In her responses she gave some odd and unlikely explanations including that she had not contacted the police because she had not been given “the police telephone number for the Sexual Assault Crisis Clinic”. She also, it seemed to me, overly emphasised the extent of her uncertainty as to what had happened to her as the basis for not acting earlier. When the same two questions which Mr Vergara had pursued with Ms Ewin were put to her by the Court, she gave more straightforward answers which in my view reflect the truth. As to why she did not tell her husband at an earlier time, Ms Ewin agreed with the proposition (which she had resisted when put by Mr Vergara) that it was because she thought her husband could not cope with being told. When asked by the Court to address the question (earlier put by Mr Vergara) as to why she had not made her complaint to police at an earlier time, Ms Ewin said that it was, “because the filth and the shame of it”.
585 Both of those answers were entirely consistent with the views Ms Ewin expressed in the Nurse-On-Call conversation. That, in the circumstances, Ms Ewin was reluctant to tell her husband what she believed had happened to her and to expose herself to public scrutiny, is entirely explicable. Whilst the manner in which Ms Ewin dealt with cross-examination on these issues contributed to my view that I needed to exercise caution before accepting Ms Ewin’s uncorroborated evidence, I did not regard the timing or manner in which Ms Ewin communicated her belief that she had been raped to her husband or to the police as saying anything much at all about what actually occurred on the night of 15 May.
586 Nor do I consider the continued work-based contact Ms Ewin had with Mr Vergara during the period 18-27 May to be revealing of what actually occurred on the night of 15 May. Ms Ewin was not the kind of person who was prone to allowing her own needs to interfere with those of her work particularly when, as was the case during the period in question, work pressures were acute. She had, as I have said, an inflated view of her capacity to cope. Ms Ewin was resistant to showing any weakness, as is revealed in her statement to police that she questioned Mr Vergara to prove that “I wasn’t frightened of him”. Ms Ewin’s stoicism and preparedness to confront Mr Vergara was, I would infer, particularly acute in circumstances where (as the evidence including that in the Nurse-On-Call conversation revealed) she had formed the view that she had been the victim of a premeditated sexual assault designed to facilitate Mr Vergara taking her job. Ms Thomas’ impression that whilst Ms Ewin was very threatened by Mr Vergara, she was trying to appear strong so that he did not think he had affected her, seems on the evidence to have been a prescient observation about Ms Ewin’s behaviour.
587 The evidence given by Ms Ewin of remarks made by Mr Vergara in the course of the week of 18 May is, if accepted, evidence which has a capacity to support the finding that I have made that Mr Vergara engaged in sexual intercourse with Ms Ewin on the night of 15 May. The comments which Ms Ewin deposed were made by Mr Vergara do more than acknowledge the uncontested fact that there was sexual activity because they identify that activity as including sexual intercourse.
588 There are some inconsistencies between the evidence of Ms Ewin and what she told police as to the comments made by Mr Vergara during this period. However in both accounts, the comments include a reference to sexual penetration.
589 That the alleged comments were in fact made by Mr Vergara to Ms Ewin is supported by Ms Thomas’ evidence that in the same week or the week after, Ms Ewin told her that Mr Vergara had made comments. However, Ms Thomas could not be specific as to what was said. Nor was her statement to police sufficiently specific to clearly identify that the comments made by Mr Vergara (as communicated to her by Ms Ewin) included a reference to sexual penetration or intercourse. In that respect Ms Thomas said that she was told that Mr Vergara had been saying “some vulgar things” and “was suggesting he had been with [Ms Ewin] that night”.
590 Whilst I accept Ms Ewin’s evidence that Mr Vergara made comments to her after 17 May suggestive of their engagement in sexual activity, because of the cautious approach I take to Ms Ewin’s evidence, I am not prepared in the absence of some corroborative evidence to accept that Mr Vergara acknowledged that sexual intercourse had taken place. I have not therefore relied on Ms Ewin’s evidence of Mr Vergara’s statements to that effect in arriving at the conclusion that sexual intercourse did in fact take place on 15 May.
591 Finally, on the same basis that I have already recorded my rejection of Mr Vergara’s claims that Ms Ewin was the sexual aggressor, I reject Mr Vergara’s evidence that in the week of 18 May, Ms Ewin proposed that they should go out for drinks and dancing, that he rejected further socialising or interest in a relationship with Ms Ewin and that in response Ms Ewin threatened Mr Vergara.
592 Ms Ewin’s pleaded case included a claim made against Mr Vergara that the same conduct relied upon for the sexual harassment claim also constituted sex discrimination in contravention of the SD Act. Ms Ewin contended that LLA, as the employer of Ms Ewin, had discriminated against her on the ground of her sex in contravention of s 14(2) of the SD Act. It was claimed LLA’s liability was vicarious and arose under s 106(1) of the SD Act because Mr Vergara was an “agent” of LLA. Mr Vergara’s liability in relation to LLA’s contravention was claimed to arise under s 105 of the SD Act because he was a person who had aided LLA to contravene s 14(2) of the SD Act.
593 The breach of s 14(2) was said to be constituted by the detriment imposed upon Ms Ewin in being denied the ordinary benefits of employment by reason of the sexual propositioning and other sexual activity inflicted upon her by Mr Vergara. That conduct of Mr Vergara, as an agent of LLA, was said to involve discrimination on the basis of Ms Ewin’s sex by LLA because, within the terms of s 5(1) of the SD Act, LLA had treated Ms Ewin less favourably than it would have treated a man.
594 It will be immediately apparent that Ms Ewin’s sex discrimination claim is not straightforward. It is a novel claim which faces a number of obstacles in its attempt to squeeze within the terms of the SD Act.
595 It might be said that it is a claim which lacks immediate attraction. However, it is not a claim I need to determine other than perhaps in one respect. Ms Ewin only pressed her claim of sex discrimination if her claims of sexual harassment failed. Ms Ewin has succeeded in all of her claims of sexual harassment but one. She has only failed in relation to the claim regarding the incident on 12 May, when Mr Vergara suggested that she go out dancing with him. Insofar as Ms Ewin does press her claim of sex discrimination in relation to that incident, I would dismiss it. Even if the technical obstacles in relation to that claim were overcome, I would not be satisfied that on the facts as I have found them, the conduct concerned, namely, an invitation to socialise which objectively speaking was not of a sexual nature, constituted less favourable treatment or resulted in Ms Ewin being subjected to a detriment in her employment in contravention of s 14(2) of the SD Act.
596 Ms Ewin seeks compensation for loss and damage suffered as a result of unlawful discrimination by Mr Vergara.
597 Where a court is satisfied that there has been unlawful discrimination by a respondent, section 46PO(4) of the AHRC Act empowers the court to grant relief.
598 Section 46PO(4), so far as is relevant, is in the following terms:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
…
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
…
599 Unlawful discrimination is defined in the AHRC Act to include sexual harassment under s 28B of the SD Act.
600 Ms Ewin claims monetary relief comprising general, special and aggravated damages by way of compensation as well as an award of exemplary damages. In summary, Ms Ewin claims:
$497,333.43 for past economic loss (including superannuation);
$800,916.13 for future economic loss (including superannuation);
$8,672.33 for past medical, pharmaceutical, therapeutic and other related expenses;
$21,000 for future medical, pharmaceutical and other related expensed;
$22,087.31 for past general expenses such as a lease of a motor vehicle, home security, stress reduction techniques and other miscellaneous expenses;
$500,000-$900,000 by way of general damages for past and future pain and suffering;
$100,000 for aggravated damages;
$150,000-$250,000 for exemplary damages; and
interest on all past losses.
601 Section 46PO(4) of the AHRC Act provides the Court with a wide discretion as to the amount of compensation the Court may order for loss or damage suffered because of unlawful discrimination.
602 There are a number of judgments of this Court where the task of assessing damages for a contravention of the SD Act has been guided by principles utilised by the common law in the assessment of damages resulting from tortious conduct: Hall v Sheiban at 239 (Lockhart J); Commonwealth v Peacock (2000) 104 FCR 464 at [55] (Wilcox J); Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102 at [208] (Buchanan J). However, as French and Jacobson JJ (with whom Branson J generally agreed) said in Qantas Airways v Gama at [94], “Ultimately it is the words of the statute that set the criterion for any award”. Having said that, their Honours recognised that the appropriate measure may be analogous to the tortious measure, the object of which is to place the injured party in the same position as if the wrong had not occurred.
603 The interaction between a statutory source for an entitlement to damages (such as that provided for by the former s 82 of the Trade Practices Act 1974 (Cth)) and the principles of the common law were usefully summed up by Gleeson CJ in Henville v Walker (2001) 206 CLR 459 at [18]:
The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case. The purpose of the statute, so far as presently relevant, is to establish a standard of behaviour in business by proscribing misleading and deceptive conduct, whether or not the misleading or deception is deliberate, and by providing a remedy in damages. The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act.
Similar observations were made by Gaudron J at [68] as well as by McHugh J (with whom Gummow J agreed) at [95]-[96] and [135].
604 What is abundantly clear is that care needs to be taken in applying common law principles to a statutory provision for the award of damages. Those principles should not be applied unless they are consistent with the text of the remedial provision and the objects and purpose of the statute in question.
605 The words used in s 46PO(4)(d) allow for “damages by way of compensation for any loss or damage suffered because of the conduct of the respondent” (emphasis added). The word “because” denotes a connection between two things “by which one is the explanation of the other”: John Holland Group Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 198 IR 439 at [29] (Pagone J). The nature of the nexus required between the damage suffered and the unlawful conduct is that the conduct has brought about or caused the damage to occur: Human Rights and Equal Opportunity Commission v Mt Isa Mines Limited (1993) 46 FCR 301 at 321 (Lockhart J).
606 The extent of the contribution made by the unlawful conduct to the injury suffered may be taken into account: Qantas Airways v Gama at [99] (French and Jacobson JJ, with whom Branson J generally agreed). A practical judgment will be required.
607 The difficulty of assessment as well as the need to take the purpose and object of the remedial provision into account, are apparent from the following insightful observations made by Wilcox J in Hall v Sheiban at 256:
[T]he task of determining the appropriate level of damages in a case of sex discrimination or sexual harassment is not an easy one. Where it appears that a claimant has incurred particular expenditure or lost particular income as a result of the relevant conduct, that economic loss may readily be calculated. But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant's relationships with other people are not susceptible of mathematical calculation. The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures. But to say this is not to denigrate the importance of such non-economic factors in the assessment of damages. It may be unfortunate that the law knows no other way of recognising, and compensating for, such damage; but this is the fact. To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage. I respectfully adopt, as a statement of principle useful in this area of the law, what was said by May LJ, of the English Court of Appeal in a racial discrimination case, Alexander v Home Office [1988] 1 WLR 968 at 975; [1988] 2 All ER 118 at 122:
“As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.”
Did Ms Ewin leave LLA because of Mr Vergara’s conduct?
608 The unchallenged medical evidence was that as a result of what occurred on the evening of 15 May, in relation to which Ms Ewin believed that she had been raped, Ms Ewin suffered PTSD and depression.
609 Prof Dennerstein is a psychiatrist with over thirty years’ experience in women’s mental health issues. She has conducted extensive research on the mental health effects of sexual abuse. Prof Dennerstein assessed Ms Ewin over a two hour consultation on 4 July 2012. Having taken a detailed history, Prof Dennerstein diagnosed Ms Ewin as suffering from PTSD as a result of what she referred to as the “harassment and rape” which took place at Ms Ewin’s workplace. Prof Dennerstein also diagnosed Ms Ewin as comorbidly developing a significant adjustment disorder with depressed mood.
610 Alexina Baldini is a qualified psychologist with experience treating patients who have encountered a significant crisis or critical incident. Ms Baldini has over 20 years’ experience providing what she called “return to work services”, which involves dealing with individuals who have been out of work for a prolonged period. Ms Baldini was primarily called to give evidence as a treating psychologist. She had seen Ms Ewin on 37 occasions since September 2010. Ms Baldini’s diagnosis was that as a result of the injury sustained by Ms Ewin on 15 May, Ms Ewin suffered from post-traumatic stress and anxiety/depression.
611 Ms Ewin’s treating general practitioner, Dr Borthwick was not called to give evidence. Dr Borthwick’s notes and reports were made available to Prof Dennerstein and were referred to in her report.
612 Mr Vergara did not present any medical evidence as to Ms Ewin’s condition.
613 After 15 May, Ms Ewin first saw her general practitioner on 29 May 2009. Dr Borthwick’s notes state that she presented in a highly stressed state, displaying symptoms of extreme distress, anxiety, tearfulness, anger and grief.
614 Ms Baldini described Ms Ewin as having tried to work through the impact of the assault upon her but that her trauma related symptoms meant that she was unable to continue to work. Ms Ewin’s inability to cope with her stressful job at LLA as a result of her impaired psychological state is otherwise consistent with the evidence including that given by Ms Ewin.
615 I am satisfied that Ms Ewin resigned from her employment with LLA with effect from 25 September 2009 because of the impact upon her of Mr Vergara’s physical sexual harassment on the evening of 15 May.
616 I appreciate that Ms Ewin’s reaction to Mr Vergara’s physical sexual harassment was based upon her belief that she had been raped. I have found that Mr Vergara engaged in unwelcome sexual intercourse with Ms Ewin and engaged in other unwelcome sexual activity with her. It was neither alleged nor was it necessary for Ms Ewin’s case to establish that Ms Ewin was raped by Mr Vergara. Rape is a criminal offence requiring proof of different matters and to a higher standard than that which is required to establish a contravention of s 28B of the SD Act. Although rape has not been proved, Ms Ewin’s belief that she was raped was a reasonable reaction to what she had in fact experienced. The causative link between Mr Vergara’s conduct and Ms Ewin’s psychiatric illness could not be said to have been broken by Ms Ewin’s belief, even if it were the case that she was mistaken that she had been criminally raped.
617 Whilst I consider Ms Ewin’s response to have been reasonable, as French J said in Hall v Sheiban at 281:
In the case of sex discrimination and sexual harassment the identification of compensable loss and damage suffered is not to be assessed by reference to the reasonableness of the victim’s response to the conduct in question… the question to be addressed so far as injury to feelings and humiliation is concerned is the factual one – what was the effect on the complainant of the conduct complained of? There is no general principle of “reasonableness” by which the existence of loss or damage is to be judged.
618 In assessing Ms Ewin’s loss by reference to her loss of past earning capacity as at the date of trial and her loss of future earning capacity thereafter, I have been guided by the object of awarding compensation so as to place Ms Ewin in the same financial position as she would have been if the sexual harassment of her by Mr Vergara had not occurred.
619 To do that, it is necessary first to establish the period over which Ms Ewin is likely to have suffered a loss of earning capacity. Ms Ewin continued to work at LLA until 25 September 2009 and until that point in time suffered no diminution of her earning capacity. From late September 2009, Ms Ewin was unemployed for an extended period. I have come to the view that by at least July 2010, Ms Ewin was capable of returning to work. I consider that Ms Ewin could have returned to work part-time in July 2010, after completing 12 months of part-time work Ms Ewin could have graduated to full-time employment, and that after 12 months of full-time work she could have moved into full-time employment equivalent to that which she had been performing at LLA. I will shortly explain why I have reached those views. On the basis of those conclusions and assuming a period of 6 months of unemployment between each job, I consider that the period in which Ms Ewin suffered loss of earning capacity by reason of her inability to work arising from her injuries, is 25 September 2009 to 1 July 2013. The trial of this proceeding commenced on 3 December 2012. For ease of calculation I will treat the period of any past economic loss as commencing on 1 October 2009 and ending on 30 November 2012 and the period of any future economic loss as commencing on 1 December 2012 and ending on 30 June 2013.
620 Both Prof Dennerstein and Ms Baldini agreed that Ms Ewin’s psychological illness required that she transition into full-time work by a graduated return to work. That return to work, they both opined, required that Ms Ewin commence with part-time employment as an accountant. They considered that such employment would ideally be performed in a less stressful environment to that at LLA and be accompanied by suitable professional assistance. Ms Baldini, who has extensive experience in providing services assisting employees to return to work, estimated that after 6 to 12 months of supported part-time work, Ms Ewin would be capable of graduating to full-time employment. Ms Baldini’s opinion was that within two years of the commencement of part-time employment, Ms Ewin would be capable of graduating to full-time employment in a more stressful role as a financial controller.
621 Both Prof Dennerstein and Ms Baldini regarded a controlled and graduated return to work for Ms Ewin as a positive step which had the capacity to enhance her recovery from her psychiatric illness.
622 The timing of Ms Ewin’s return to work and the commencement of a graduated return to full-time work was also the subject of evidence from both Prof Dennerstein and Ms Baldini, but it was the subject of some conflict and there were difficulties with this evidence.
623 Ms Baldini considered that a return to part-time graduated work for Ms Ewin could be expected within six months of this proceeding being resolved. On the other hand, Prof Dennerstein was more guarded in her views. When dealing with the subject of Ms Ewin’s return to work in her report, Prof Dennerstein referred to an opinion given on 14 April 2011 by Dr Borthwick that Ms Ewin was then able to return to work. Prof Dennerstein noted that opinion without expressly disagreeing with it and without expressing an alternative date upon which, in her opinion, Ms Ewin had been or would be able to return to employment. Prof Dennerstein did however say that, on the basis of the symptoms she observed on 4 July 2012, it was difficult for her to imagine Ms Ewin in a workplace.
624 The difficulty I have with the evidence given by Ms Baldini and Prof Dennerstein about when Ms Ewin was capable of first returning to work is that insufficient account seems to have been taken of the fact that Ms Ewin had returned to work in July of 2010 and performed full-time work for 21 weeks.
625 In about late 2009, Ms Ewin commenced searching for work. At about that time she completed a one week company director’s course through the Australian Institute of Company Directors to improve her employment prospects. Her evidence revealed that she engaged in an extensive search for work. She placed herself with some fourteen different recruitment firms and between December 2009 and April 2011, Ms Ewin applied for some ninety-seven jobs. In July 2010, Ms Ewin secured a full-time accounting role with Toll Holdings. Her contract with Toll was for an initial term of twelve weeks and was later extended for a further nine weeks ending in late November of 2010.
626 Some two weeks after commencing employment at Toll Holdings, Ms Ewin suffered a miscarriage. The miscarriage exacerbated Mr Ewin’s symptoms for some time. Despite that exacerbation, Ms Ewin was able to continue working at Toll Holdings for a further nineteen weeks until her contract came to an end. Ms Ewin did give evidence, which I accept, that she found returning to the workplace extremely stressful and that she had difficulties in coping with her work at Toll Holdings. She nevertheless completed her contract with Toll Holdings and thereafter continued to seek full-time employment until at least April 2011.
627 Prof Dennerstein prepared her report on the basis that Ms Ewin had worked at Toll Holdings for two weeks, had a miscarriage and had not returned to work since. When asked about her awareness of Ms Ewin’s employment at Toll Holdings, Prof Dennerstein initially said that she was aware that Ms Ewin “only lasted two weeks”. Prof Dennerstein said that she was not aware that Ms Ewin went back to work after the miscarriage. When challenged as to whether the fact that Ms Ewin had worked at Toll Holdings for some four and a half months would change her assessment of Ms Ewin’s capacity to work, Prof Dennerstein said that there was no change to her assessment and that she thought that Ms Ewin was someone who probably could go back to at least part-time work. It was not clear from the answer given whether Prof Dennerstein was saying that in her view Ms Ewin could have gone back to part-time work at an earlier time or whether she meant that her capacity to work was prospective. In the context of the question put, it is more likely that Prof Dennerstein was speaking of a retrospective rather than a prospective capacity. That view is also consistent with the manner in which Prof Dennerstein dealt with Dr Borthwick’s opinion that Ms Ewin was capable of working as at 14 April 2011.
628 Ms Baldini gave evidence that she was aware that Ms Ewin had done some work at Toll Holdings and said that she had factored that into her assessment. The extent of Ms Baldini’s awareness and the impact of that upon her assessment was not explored. The obvious tension between the significant period of work performed by Ms Ewin and Ms Baldini’s view that Ms Ewin was not able to work was not explained.
629 There was no explanation given by Ms Ewin or the medical witnesses called on her behalf as to why a graduated and supported return to work for Ms Ewin had not been tried at an earlier time. It appears to me that if Ms Ewin was capable of holding down a full-time position for over four and a half months from 2 July 2010, she was, from at least that time, capable of returning to supported part-time employment of the kind that the medical evidence suggests would have been beneficial and would have facilitated a return to full-time employment at a financial controller level some two years thereafter.
630 Ms Ewin bears the onus of proof in establishing her loss and damage. She also has a duty to mitigate her loss and damage. I am not satisfied, on the evidence before me, that Ms Ewin was not capable of returning to work in a part-time capacity from 1 July 2010. Ms Ewin’s duty to mitigate her loss included a duty to take reasonable steps to graduate back into full-time employment. The appropriate steps which ought to have been taken, according to the medical evidence called for Ms Ewin, were not taken. In my view they should have been and could have been taken from at least 1 July 2010.
631 Upon commencing her search for work in late 2009, Ms Ewin contacted Greg McDonald, a recruiter in the finance and accounting fields at Robert Walters. Mr McDonald was responsible for placing Ms Ewin in her role as Group Financial Controller at LLA and he met with Ms Ewin on two occasions when she was seeking work in late 2009 and 2010. Mr Vergara called Mr McDonald to give evidence. His evidence included general evidence about the job market in the field of accounting.
632 Mr McDonald’s evidence as to the job market indicated that part-time work for accountants at Ms Ewin’s level was and is limited. Nevertheless, Mr McDonald’s evidence suggested that some part-time vacancies were available and that opportunities including for less stressful positions in small accounting firms arise from time to time. My view that Ms Ewin could have returned to work on a part-time basis from at least 1 July 2010 takes into account that it might have taken some months for Ms Ewin to find a suitable position.
633 My assessment of when it might have been expected that Ms Ewin could have been in full-time employment in a lower stress work environment and then in full-time employment as a financial controller is, in each case, based on the maximum time specified by Ms Baldini as the necessary time between each graduated level. Each of those periods also allows for a six month period of unemployment in order to take into account that the flat job market would have made transitioning from one position to the next difficult.
634 From the evidence tendered it is not possible to precisely calculate Ms Ewin’s earnings from work performed during the period 1 October 2009 to 30 November 2012. Ms Ewin tendered notices of her tax assessment from the Australian Taxation Office for this period but these notices provide only an aggregate figure for her taxable income and do not distinguish between income from work and other non-work related income.
635 Ms Ewin’s evidence was that after leaving LLA and prior to the trial she held only one job, being her contract position at Toll Holdings. Ms Ewin deposed that she worked at Toll Holdings from 2 July 2010 to 24 or 26 November 2010 and received a daily rate of pay of $610. Assuming that Ms Ewin worked every working day during the period she was engaged by Toll Holdings, Ms Ewin would have earned gross income of approximately $60,040. I take this figure to be an appropriate approximation of her total earnings from work performed between 1 October 2009 and 30 November 2012.
636 Ms Ewin also received a payment of $40,544 in connection with her Workcover claim. While it is not entirely clear from the evidence, it is probable this payment was received in respect of forgone wages.
637 If Ms Ewin had taken the steps which I consider she should have taken to facilitate a graduated return to full-time employment as a financial controller, doing the best I can on the evidence before me, I consider she would have earned $120,000 between 1 October 2009 and 30 November 2012.
638 Mr McDonald’s evidence was that a lower level accounting position at a small accounting practice was remunerated at between $45,000 and $100,000 per annum. Taking $70,000 as a reasonable midpoint and assuming 3 days of part-time employment for twelve months between 1 July 2010 and 30 June 2011, I assess that Ms Ewin should have earned $42,000 in that period.
639 Assuming then a six month search for a full-time position followed by twelve months of employment in a similar position but working full-time, with a higher level of responsibility and earning a salary of $85,000, I consider that between 1 January 2012 and 30 November 2012 Ms Ewin should have earned a further $78,000 to the date of the trial.
640 In my view, $120,000 appropriately approximates the sum of money Ms Ewin could have earned in mitigation of her past economic loss. That sum should then be deducted from the amount it may be anticipated Ms Ewin would have earned if she had not been exposed to the sexual harassment. The net result will reflect Ms Ewin’s loss in relation to her past earning capacity.
641 Calculating what Ms Ewin would have earned to the date of trial is also a task fraught with difficulty. Ms Ewin’s case proceeded on the basis that but for the sexual harassment, Ms Ewin would have remained at LLA earning $163,500 per annum. However, I do not accept that it is likely that Ms Ewin would have remained at LLA through to the date of trial. In my view it is more likely that Ms Ewin would have remained at LLA for a period of some 6 to 12 months after 25 September 2009 and that 9 months of further employment at LLA would be a reasonable assumption to make.
642 By September 2009, Ms Ewin had been at LLA for some 10 months. Her competence and her capacity for hard work were not in doubt. The evidence suggests that LLA did have some concern about the high level of turnover in her unit. Nevertheless, LLA showed its appreciation of Ms Ewin by paying her a performance bonus in the first half of 2009. From LLA’s perspective, it may reasonably be assumed that LLA would have been content to see Ms Ewin remain in her position until at least December 2012.
643 However from Ms Ewin’s perspective, the view of things was somewhat different. She was working intolerably long hours. By reason of the state of LLA’s books and complex financial structures, the job was highly stressful and demanding. On her own evidence, Ms Ewin worked 14 hours a day on weekdays and also worked from home on weekends. Further, from Ms Ewin’s perspective, she was inadequately supported in her work.
644 In my view, the excessive hours that Ms Ewin was working were unsustainable in the longer term. Her relationship with Mr Newton was difficult and likely to fracture. She felt insecure about her future prospects at LLA. Ms Ewin’s frustrations with her employment at LLA were illustrated by her regular threats to resign.
645 My conclusion that Ms Ewin would have stayed at LLA for less than 2 years is also supported by Ms Ewin’s propensity to move between different employers, as suggested by her work history. That history shows a number of periods of unemployment and that in about 9 years of gainful employment, Ms Ewin had 7 different jobs.
646 If Ms Ewin had remained at LLA for a further 9 months to 30 June 2010, her likely earnings would have been approximately $123,000.
647 That leaves to determine what Ms Ewin would likely have earned in the 29 months through to 30 November 2012. It is unlikely in my view that she would have sustained the income she had been earning at LLA over that period. Her past employment history shows significant gaps between jobs and a far lower earning capacity. In the 4 financial years prior to her employment at LLA, Ms Ewin earned a total of just over $325,000 in salary, at an average of about $81,300 per annum. Given the flat employment market for accountants, it is likely some period of unemployment would have been experienced by Ms Ewin upon leaving LLA.
648 Taking that into account, but allowing for Ms Ewin’s greater level of experience and the higher level of her last position at LLA, it is in my view reasonable to expect that Ms Ewin’s earnings would have averaged about $120,000 per annum or $10,000 per month in the period 1 July 2010 to 30 November 2012. I would therefore assume earnings over that period of $290,000.
649 On that basis, it should be presumed that between 1 October 2009 and 30 November 2012, Ms Ewin would have earned $413,000. After deducting from that sum the $120,000 I consider Ms Ewin should have earned over that period, I consider that an appropriate allowance for Ms Ewin’s loss of past earning capacity is $293,000.
650 As explained above, in calculating Ms Ewin’s loss of both past and future earning capacity, I have assumed that in order to mitigate her loss Ms Ewin ought to have spent 12 months working part-time in a low stress work environment, then 12 months working full-time in a low stress work environment and that after such a period, Ms Ewin ought to have been ready to return to full-time work at a level similar to that at which she was working at LLA. I have allowed Ms Ewin a period of 6 months of unemployment in between each job in recognition of the difficulties she would likely have experienced in finding appropriate work.
651 The calculation of Ms Ewin’s loss of future earning capacity proceeds on the basis of these assumptions. If she had taken the necessary steps to mitigate her loss, in the month following the commencement of the trial, Ms Ewin would have earned $7,000 working full-time in a low stress work environment before being unemployed for 6 months and then returning to work at the same rate of pay she received at LLA by 1 July 2013. I have assumed had the sexual harassment not taken place that Ms Ewin would have earned a salary of $10,000 per month. Therefore in the 7 month period following the trial and preceding her return to work at her pre-harassment rate of pay, I assess Ms Ewin’s loss of future earning capacity at $63,000. I will allow that amount in compensation for Ms Ewin’s loss of future earning capacity.
General damages – pain and suffering and loss of amenities
652 There can be no doubt that Ms Ewin has suffered greatly as a result of the sexual harassment inflicted upon her. Her immediate physical injuries included pain to her back and neck but her psychological injuries have been far more severe, having endured for over 3 years and being likely to continue for some time.
653 Prior to the harassment, Ms Ewin was a confident, highly functioning individual who was outgoing and socially active. Her reaction to the sexual harassment has resulted in dramatic changes to both her personality and her lifestyle. That has substantially diminished Ms Ewin’s quality of life and caused her substantial pain and suffering.
654 In the period between the harassment and the trial, Ms Ewin spent most of her time at home alone. She was frequently teary. She had difficulty sleeping and experienced recurring nightmares which caused her to grind her teeth and required her to wear a protective mouth guard to bed. She was often crippled with fear and suffered from agoraphobia. She was scared to take public transport and her fear of Mr Vergara led her to install security cameras in her former home. Ms Ewin deposed and I accept that she became withdrawn. She was more disconnected from her family and more alienated from her friends. She had difficulty trusting men and she rarely attended social gatherings. She experienced suicidal ideation.
655 Ms Baldini, with whom Ms Ewin has had very extensive counselling, described Ms Ewin’s sense of physical violation as a strong factor in her sense of loss over the miscarriage she suffered in July 2010. Ms Baldini considered that Ms Ewin’s heightened sensitivity to abusive relationships has factored into her loss of friendship groups and the contraction of her social world. Ms Ewin’s loss of trust in others has played a primary role in her incapacity to feel comfortable in her social interactions, including when travelling on public transport. Her relationship with males in particular has been altered and her tolerance for uncertainty in relationships was described by Ms Baldini as minimal. Ms Baldini considered that Ms Ewin’s recovery will need to include rebuilding her social life and her professional identity.
656 Prof Dennerstein observed that Ms Ewin had depressed mood and was experiencing tearfulness triggered by reminders of the harassment. She observed that Ms Ewin had psychic and somatic anxiety and had experienced panic attacks at times. Ms Ewin was agoraphobic, had middle insomnia and was awake for hours during the night. She had lowered motivation. She had poor concentration and memory and had difficulty finishing things. She had reduced sexual interest. She had a fear of a foreshortened future. She continued to feel numbed and detached. She was socially withdrawn.
657 Prof Dennerstein described Ms Ewin’s symptoms as chronic and likely to persist. Ms Baldini considered that Ms Ewin’s trust in others had been permanently affected and that whilst Ms Ewin’s chronic symptoms have shown some slight improvement, they are likely to be permanent and require Ms Ewin to adapt and adjust her life to cater for anxiety related symptoms. Both Ms Baldini and Prof Dennerstein were hopeful that with ongoing support and treatment Ms Ewin will improve, particularly once the litigation is completed and Ms Ewin can move on.
658 The assessment of general damages in compensation for pain and suffering, for loss of amenity or enjoyment of life and for other intangibles, is not a science and by its nature is not readily capable of arithmetic calculation. Ultimately no amount of money can remove the pain and suffering and loss of amenity Ms Ewin has suffered. All the Court can do is to seek to provide fair and reasonable compensation to Ms Ewin for her suffering. The award of compensation should be neither restrained nor excessive. Each case will be determined by its own particular facts. With great caution, regard may be had to similar cases in order to determine an appropriate range within which the damages awarded should fall.
659 There are in that respect two cases under the SD Act in which substantial awards of general damages were granted in circumstances which bear some similarity to those faced by Ms Ewin. In Poniatowska, Mansfield J awarded $90,000 to reflect both past and future disadvantage for pain and suffering. The case involved an employee who was subjected to inappropriate sexual harassment and sex discrimination in the workplace and was ultimately alienated and dismissed from her employment. This caused her to develop a depressive illness resulting in some years of quite considerable personal distress and unhappiness.
660 The quantum of damages awarded by Mansfield J was unsuccessfully challenged on appeal: Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92 at [117]-[119] (Stone and Bennett JJ, with whom Dowsett J generally agreed).
661 In Lee v Smith [2007] FMCA 59, Connolly FM awarded $100,000 in general damages to a female applicant who had been the subject of physical sexual harassment which the Federal Magistrate described as rape. The applicant had suffered for five or six years. She had been unable to work or enjoy a relationship with her partner. Her social functioning with her son and other members of her family had been markedly impaired. The applicant suffered fear and had at times been suicidal. She had been diagnosed as suffering from PTSD, chronic adjustment disorder and depressed mood.
662 Ms Ewin’s loss of enjoyment of life was acute over the 3 year period to the date of the trial. My view that she could have transitioned through part-time work and into full-time work at a financial controller level by July 2013, is not intended to suggest that despite being capable of working, Ms Ewin did not nevertheless suffer from illness and that her loss of enjoyment of life was not substantial. Whilst her loss of amenities will diminish, it will continue to be significant for several years at least. I consider that the extent of her pain, suffering and loss of amenities justifies an award of $110,000 as compensation for both past and future disadvantage.
663 In this part of her claim Ms Ewin claimed the following expenses as medical, pharmaceutical and therapeutic expenses:
(ii) $312 for 30 consultations with medical general practitioners incurred between 29 May 2009 and 12 September 2012;
(iii) $4,188 for 39 consultations with a psychologist between 29 September 2009 and 31 October 2012;
(iv) $531 for dental treatment to deal with Ms Ewin grinding her teeth and chewing the inside of her mouth as a result of stress;
(v) $485 for remedial massage treatments over the course of 2010 to 2012 for muscle correction due to prolonged stress;
(vi) $610 for relaxation massage treatments over the course of 2010 to 2012;
(vii) $27 for two visits to the chiropractor in May 2009;
(viii) $1,112 for colonic irrigation and other treatment for irritable bowel symptoms which Ms Ewin deposed were exacerbated by Mr Vergara’s conduct;
(ix) $180 for Bikram Yoga classes which Ms Ewin claims her psychologist encouraged her to attend to help Ms Ewin overcome her agoraphobia and for relaxation;
(x) $800 for the purchase of two Dachshund dogs which Ms Ewin also claims her psychologist encouraged her to purchase for companionship and to encourage Ms Ewin to leave the house (to walk the dogs); and
(xi) $426 for pharmaceutical purchases including for the morning-after pill and headache, irritable bowel, anti-depressant and sleeping medications.
664 In the category of “Other Expenses” Ms Ewin claimed the following expenses:
(xii) $18,982 for the lease of a motor vehicle over a period of 36 months, including insurance and a service. This was claimed to be necessary because of Ms Ewin’s inability to use public transport;
(xiii) $181 for airline tickets to visit family members interstate for emotional support;
(xiv) $280 for airline tickets for Ms Ewin’s mother to travel from Brisbane to Melbourne to provide emotional support;
(xv) $280 for airline tickets for Ms Ewin to meet with her solicitors in Brisbane;
(xvi) $716 for home video surveillance equipment;
(xvii) $97 for rape education and self-help texts;
(xviii) $1,199 for a cross trainer exercise machine; and
(xix) $350 for leather boots.
665 I will allow the medical and pharmaceutical expenses listed at (ii), (iii), (iv), (vi), (vii) and (x). In relation to the amount claimed at (i), the evidence tendered only supported expenses of $194 and accordingly I have made an award of that amount in relation to those expenses.
666 I am not persuaded that the expenses claimed at (v), (viii), (ix), (xi), (xii), (xiii), (xvi) and (xvii) are sufficiently connected to Mr Vergara’s conduct to be fully compensable. Insofar as there is some connection and therefore some proportional compensation due, I regard that to be subsumed in the compensation awarded under the head of general damages.
667 As to the amount claimed at (xiv), Ms Ewin’s choice of Brisbane solicitors was a matter for her. There is no shortage of competent solicitors in Melbourne capable of representing her in relation to her claim. I will not allow the expense claimed to travel to Brisbane to meet with her solicitors. Nor will I allow the amount claimed at (xv) including because, as an improvement to her former home, the extent to which the amount expended by Ms Ewin involved any loss was not proved.
668 Item (xviii) relates to the leather boots that Ms Ewin was wearing at the time that she was physically sexually harassed. The boots were taken by Victoria Police in order to investigate whether there were traces of Mr Vergara’s semen on them. I accept that, in the circumstances, the boots could be of no further use to Ms Ewin. She has claimed the cost of their purchase. They were not new. I will allow $200.
669 In total, the amount I will allow for past expenses is $7,163.
670 Ms Ewin also claimed future medical expenses comprising:
(i) $5,400 for monthly appointments with a general medical practitioner for a period of 5 years;
(ii) $12,000 for monthly appointments with a psychologist for a period of 5 years; and
(iii) $3,600 for medication and pharmaceutical expenses over the next 5 years.
671 There was no evidence to support the need for Ms Ewin to see her general practitioner each month for a period of five years. In the 3 years to trial she incurred expenses of $194 for consultations with her general practitioner. I will not allow that claim.
672 Ms Baldini gave evidence that Ms Ewin should continue to attend counselling sessions for five years and estimated the cost at approximately $11,000. I do not accept that claim. Ms Ewin claimed $4,188 for the cost of consultations with a psychologist for the three years prior to 31 October 2012. Whilst I recognise that Ms Ewin is likely to have ongoing costs of this kind, there is no basis to believe that the costs will substantially increase over the next five years rather than substantially diminish. I will allow $2,000 in relation to future psychological counselling.
673 Prof Dennerstein estimated that anti-depressant medication is likely to cost Ms Ewin around $30 a month. No evidence was given as to the period over which it is likely Ms Ewin will be required to take such medication. Assuming, as I have, that Ms Ewin’s symptoms will subsist for at least a further three years after the trial date, I will allow $1,000 for this item.
674 In total, the amount I will allow for future expenses is $3,000.
Aggravated and exemplary damages
675 In Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389 at [347], Barker J identified both the purposes of and the difference between aggravated damages and exemplary damages:
Aggravated damages are given to compensate a person where the harm suffered was aggravated by the manner in which the act was done. In this, they are different from exemplary damages, which are intended to punish a wrongdoer and deliver a measure of moral retribution or deterrence: see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149, per Windeyer J, whose observations to this effect were quoted with apparent approval in Gray v Motor Accident Commission (1998) 196 CLR 1 at [6], per Gleeson CJ, McHugh, Gummow and Hayne JJ.
676 Aggravated damages are considered to be compensatory and there is no question that it is within a court’s power to award such damages under s 46PO(4)(d). Aggravated damages were considered to be available under the predecessor provisions to s 46PO which were in similar terms: Hall v Sheiban at 239-240 (Lockhart J) and 282 (French J); Elliot v Nanda (2001) 111 FCR 240 at 297 (Moore J).
677 In this case, Ms Ewin claims aggravated damages in the amount of $100,000. In closing submissions counsel for Ms Ewin stated the basis for such an award in the following terms:
[T]hat whatever award your Honour strikes for general damages, there is always going to be a component in a case like this that general damages in the discretion of your Honour won’t sufficiently compensate the horror, the dislocation, the disruption of life, the smell of flashbacks, the suicide attempts, the change in lifestyle. There are present in this case, as in cases of similar sort, aspects that won’t be covered within what is commonly compensated for by general damages.
678 The considerations which Ms Ewin’s counsel referred to are considerations that have already been taken into account in the award of general damages. Those same considerations cannot be used to justify a separate order for aggravated damages because to do so would involve “double dipping”: Clarke at [348] (Barker J). As Barker J noted in Clarke at [349] by reference to Elliot v Nanda at 297-298, there are a wide range of circumstances in discrimination cases which may give rise to an award of aggravated damages. Those circumstances might include the manner in which a party conducted its case and thereby exacerbated the hurt and injury suffered from the primary discrimination. However, Ms Ewin made no submission that the Court should award aggravated damages on a basis other than that which I have already identified. Nor am I of the view that a basis that would justify an order for aggravated damages was apparent. In the circumstances I will make no award for aggravated damages.
679 Ms Ewin’s Counsel contended that in a case such as this there is a powerful reason to award exemplary damages, namely, to express the Court’s disapproval of the conduct of the respondent, particularly in circumstances where that respondent has not been subjected to the litigious process of the criminal justice system. What I understand counsel to have meant is that an award of exemplary damages should be made in order to punish Mr Vergara for conduct in relation to which he has not been punished.
680 The object of the award of exemplary damages for tortious conduct is to punish the wrongdoer and deter like conduct: Gray v Motor Accident Commission (1998) 196 CLR 1 at [15] (Gleeson CJ, McHugh, Gummow and Hayne JJ). As their Honours said in that case, the principal focus of the enquiry is upon the wrongdoer and not upon the person who was wronged. The party wronged will have been fully compensated without recourse to an award of exemplary damages.
681 Exemplary damages are punitive damages and are not compensatory in nature. In Qantas Airways v Gama, French and Jacobson JJ (with whom Branson J generally agreed) noted at [94] that the damages available under s 46PO(4)(d) are “entirely compensatory”. However as Barker J noted in Clarke at [340] the Court’s broad power under s 46PO(4) to make such orders “as it thinks fit” may provide a capacity for the Court to award exemplary damages. That view is supported by the obiter observations of Stone and Bennett JJ (with whom Dowsett J generally agreed) that while s 46PO(4) refers only to orders for damages of a compensatory nature, there is no exclusion of other orders that may be made: Employment Services Australia v Poniatowska at [133].
682 In Clarke, Barker J did not need to finally determine that question because he was not satisfied that an award of exemplary damages would be appropriate. I too, am not currently satisfied that an award of exemplary damages is appropriate. That view may change if, for reasons I will shortly set out, it turns out that the quantum of damages that I propose Mr Vergara pay to Ms Ewin needs to be reduced by reason of any prior satisfaction of Ms Ewin’s entitlement to recover her loss. Subject to that eventuality, I do not at present need to determine whether an award of exemplary damages is available.
683 Putting to one side the reservation just expressed and assuming that I have the power to impose an impost upon Mr Vergara for the purpose of punishment and deterrence, I would not do so for the same reasons that in tort an award of exemplary damages would not be made in circumstances such as the present. As Wilcox, O’Loughlin and Lindgren JJ explained in Sanders v Snell (1997) 73 FCR 569 at 601, exemplary damages will only be awarded if a court is satisfied that the quantum of the compensatory damages awarded has insufficient punitive force. Exemplary damages will be awarded “if, but only if”, the sum awarded as compensatory damages is inadequate to punish the wrongdoer for his or her conduct.
684 In my view the compensatory damages which I propose to award are not inadequate to punish Mr Vergara for the entirety of his unlawful conduct and to deter him and others from engaging in similar conduct. The imposition of an additional sum to facilitate those objectives is neither necessary nor warranted. On the basis of what I currently propose to award Ms Ewin, the contention made by Ms Ewin’s Counsel that Mr Vergara needs to be punished because he will not otherwise be punished is misplaced.
The possibility of double recovery
685 I have assessed the entirety of Ms Ewin’s loss and damage arising from Mr Vergara’s conduct on 13 to 15 May 2009. When this proceeding was commenced and largely relying upon the same conduct of Mr Vergara, Ms Ewin’s originating application included a claim against LLA and also against Robert Walters. Ms Ewin’s claims against each of LLA and Robert Walters were mediated and resolved. The terms of any settlement between Ms Ewin and LLA or Ms Ewin and Robert Walters have not been disclosed to me. It is possible that in any such settlement, Ms Ewin’s entitlement to recover her loss arising from or consequential upon the same conduct relied upon here, has been satisfied in part or in whole.
686 It is well established that an applicant may not recover from one or more respondents an amount that is in excess of his or her loss: Baxter v Obacelo Pty Ltd (2001) 205 CLR 635. It does not matter that the claims against the various respondents arise under different causes of action. Where relief is sought in respect of the same loss, recovery will be limited by the extent of the applicant’s loss. This is a principle frequently applied in relation to statutory schemes for the payment of damages or compensation: see SAS Trustee Corporation v Budd [2005] NSWCA 366 at [32] (Mason P, with whom Handley and McColl JJA agreed). The principle is often referred to as the rule against double recovery.
687 There is a line of authority which suggests that once a respondent shows that a payment has been made to a claimant in circumstances capable of attracting the rule against double recovery, it is for the claimant to show that the payment was not received in compensation for the same loss: Boncristiano v Lohmann [1998] 4 VR 82 at 89-90 (Winneke P, with whom Charles and Batt JJA agreed) citing Townsend v Stone Toms & Partners (1984) 27 BLR 26; and see also SAS Trustee Corporation v Budd at [49] (Mason P, with whom Handley and McColl JJA agreed).
688 Mr Vergara did not raise the possibility that the rule against double recovery may have application in this case. Nor did Ms Ewin raise the issue. Nevertheless, the demands of justice require that I be satisfied that any orders I make will not result in double recovery for Ms Ewin.
689 In Miletich v Murchie (2012) 297 ALR 566, during the course of the trial, the first and second respondents settled with the applicants. Following the trial, Gray J determined that the remaining respondents were liable to pay damages for misleading and deceptive conduct. Given the likelihood that an award of compensation would raise an issue of double recovery, counsel for the applicants offered to tender the relevant settlement documents but contended that the settlement was no bar to the entry of judgment against the remaining respondents for the whole amount of the loss and damage the applicants were found to have suffered. It was contended that the rule against double recovery operated only at the level of execution of a judgment, so that the applicants would be bound not to execute any judgment against the remaining respondents for more than the shortfall after taking into account whatever was recovered by means of the settlement with the first and second respondents.
690 Gray J (at [121]-[125]) referred to Boncristiano v Lohmann and Townsend v Stone Toms & Partners and by reference to the principles there discussed rejected the contention that partial satisfaction should only be taken into account at the time judgment is executed. His Honour determined that the proper approach is that where concurrent claims have been made against two persons and there has been recovery of all or part of a loss from one, the recovery will diminish the damages to be awarded against the other person. Subject to considering any further submission from the parties as to that issue, I intend to take the same approach.
691 Gray J at [126] considered that further evidence was required before the amount of the judgment and consequently, the interest payable on that amount, could be determined. The appropriate course there adopted, and which I will here follow, is to order Ms Ewin to file affidavit material disclosing the terms of any settlement with LLA, Robert Walters or any other person and the amount, if any, Ms Ewin claims she is entitled to deduct from any lump sum settlement on account of costs. The basis for any such deduction for costs will need to be verified by affidavit. I note in that respect that where a settlement is inclusive of costs, the party against whom double recovery is pleaded is entitled to deduct the costs of pursuing an action against the party with whom settlement was reached before giving credit for the amount received under the settlement: see Miletich v Murchie at [124]-[125] (Gray J) and Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 at [108] (McColl JJA) both citing Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2) [1988] 2 All ER 880 at 882 (Steyn J).
692 Subject to my determination of any issue which arises by reference to the rule against double recovery, I propose to order that judgment be entered against Mr Vergara for the amount of $476,163 together with interest. As my reasons have explained, that amount is made up of the following components:
loss of past earning capacity - $293,000;
loss of future earning capacity - $63,000;
general damages - $110,000;
past expenses - $7,163; and
future expenses - $3,000.
693 For reasons already explained, the appropriate course is to order that Ms Ewin file and serve an affidavit detailing the terms of any settlement reached with LLA, Robert Walters or any other person and if necessary, setting out and verifying the amount she claims to be entitled to deduct from any lump sum by way of costs. I will also order that Ms Ewin file and serve minutes of proposed orders that reflect these reasons for judgment. The proceeding will be listed for the further hearing of any submissions as to the terms of the appropriate orders which the Court should make including as to costs.
I certify that the preceding six hundred and ninety-three (693) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. |
Associate:
